|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
COMMISSIONER CAMBRIDGE
C2015/1338 C2015/1654
s.739 - Application to deal with a dispute
Flight Attendants' Association of Australia
and
Qantas Airways Limited
C2015/1338
Flight Attendants' Association of Australia - International Division, Qantas Airways Limited and QF Cabin Crew Australia Pty Limited Enterprise Agreement 2012 (EBA9)
(ODN AG2013/5960)
[AE401775 Print PR537825]]
s.739 - Application to deal with a dispute
Transport Workers' Union of Australia
and
Qantas Airways Limited & QF Cabin Crew Australia Pty Ltd
(C2015/1654)
Flight Attendants' Association of Australia - International Division, Qantas Airways Limited and QF Cabin Crew Australia Pty Limited Enterprise Agreement 2012 (EBA9)
(ODN AG2013/5960)
[AE401775 Print PR537825]]
Sydney
10.02 AM, WEDNESDAY, 10 JUNE 2015
PN1
THE COMMISSIONER: Could I have the appearances in the matter, please?
PN2
MR J NOLAN: Yes. May it please the Commission. I continue my appearance in this matter for the Flight Attendants Association.
PN3
THE COMMISSIONER: Thank you.
PN4
MR B BAARINI: If the Commission pleases, initial B, Baarini. I continue to appear on behalf of the Transport Workers Union in this proceeding.
PN5
THE COMMISSIONER: Thank you.
PN6
MS H McKENZIE: If it please the Commission. I appear for the respondent s Qantas and QF Cabin Crew Australia.
PN7
THE COMMISSIONER: Thank you. Mr Nolan?
PN8
MR NOLAN: Yes, Commissioner. Further to the directions that you issued on the earlier occasions, you now will have received a substantial welter of material, namely submissions and written statements from the various parties. What I d propose to do is not really go into any detail about the submissions simply because you've had the benefit of reading those. So subject to anything you'd say, I d propose to go straight into our evidence and, as I understand it, Mr Reed, who s our witness, has been required for cross‑examination and he has submitted two statements, one dated 17 April and the second one dated 29 May and they have various attachments and so on. Unless there s something further, I propose to call Mr Reed to the witness box and have him affirm his statements and then we can get on with the cross‑examination.
PN9
THE COMMISSIONER: Just so I got the order right. We've got Mr Reed.
PN10
MR NOLAN: Yes.
PN11
THE COMMISSIONER: He s the only witness for the FAAA.
PN12
MR NOLAN: For the FAAA. That's right.
PN13
THE COMMISSIONER: Then we've got witness for the TWU, a Susan McKenna. Is that correct?
PN14
MR BAARINI: That's correct, Commissioner.
PN15
THE COMMISSIONER: All right. That's the only witness for the TWU?
PN16
MR BAARINI: That's correct, yes.
PN17
THE COMMISSIONER: Then the respondent have two witnesses.
PN18
MS McKENZIE: That's correct, Commissioner.
PN19
THE COMMISSIONER: All right. So I'm not missing anything. I ve got all of that.
PN20
MR NOLAN: I indicated to Ms McKenzie that I didn't propose to cross‑examine the Qantas witnesses, but I think Mr Baarini might have some questions for them. So I d ask then Mr Reed to go to the witness box and be sworn in.
PN21
THE COMMISSIONER: Should any of the other witnesses remain in the room whilst this witness gives his evidence?
PN22
MR BAARINI: I understand that they ve left the room, Commissioner. I d prefer that they not here the witness version.
PN23
MS McKENZIE: Ms McKenna is still in the room, is she?
PN24
MR BAARINI: Yes, I'm happy for her to leave the room as well.
PN25
THE COMMISSIONER: All right, thank you.
PN26
THE ASSOCIATE: Please state your full name and address?
MR REED: Steven Reed (address supplied).
<STEVEN REED, SWORN [10.05 AM]
EXAMINATION-IN-CHIEF BY MR NOLAN [10.05 AM]
PN28
MR NOLAN: Mr Reed, as I indicated, you've submitted two statements, one dated 17 April and the other dated 29 May. Is that correct?‑‑‑Correct, yes.
PN29
Can I take them in turn? The statement dated 17 April, do you have that with you in the witness box?‑‑‑I do.
PN30
Do you say to the best of your knowledge and belief that the contents are true and correct and that any opinion expressed by you is conscientiously held?‑‑‑I do.
PN31
Subject to any objection, that s the evidence of ‑ ‑ ‑
PN32
THE COMMISSIONER: You tender the document? Is there any objection to its admission?
PN33
MS McKENZIE: Commissioner, I ve got some objections to some aspects of that statement, if I can just draw those to your attention briefly.
PN34
THE COMMISSIONER: Yes.
PN35
MS McKENZIE: Paragraphs 20 through to 23 deal with a completely separate matter. It s a matter for the Commission, but our objection is based on relevance. Mr Reed talks about provisions of the EBA that really have nothing to do with uniforms.
PN36
THE COMMISSIONER: I suppose, though, as is often the case, the question of relevance is really a matter for weight, I suppose. It s not in itself objectionable, I suppose.
PN37
MS McKENZIE: Yes, thank you.
PN38
THE COMMISSIONER: In due course, you may want to make submissions about its irrelevancy.
PN39
MS McKENZIE: Indeed, we will.
*** STEVEN REED XN MR NOLAN
PN40
THE COMMISSIONER: But I don't think it s a reason to actually omit it.
PN41
MS McKENZIE: All right, thank you, Commissioner. The only other matters are paragraphs 45 through to 48 and the Commissioner may have the same view, but those matters Mr Reed is expressing an opinion without any factual basis for the opinion. Again, it probably goes as a matter of weight, but we wanted to make that point.
PN42
THE COMMISSIONER: Yes. I think there s a fair bit of opinion in a number of the statements expressed at different points, but I think we just have to live with that to a large degree.
PN43
MS McKENZIE: All right, thank you, Commissioner.
PN44
THE COMMISSIONER: All right.
PN45
MS McKENZIE: No other objections.
PN46
THE COMMISSIONER: There s no objection from the TWU?
PN47
MR BAARINI: No.
THE COMMISSIONER: All right, thank you. The document is tendered and admitted and this will be marked as exhibit 1. Exhibit 1 is described as the statement of Steven Reed dated 17 April 2015, exhibit 1.
EXHIBIT #1 STATEMENT OF STEVEN REED DATED 17/04/2015
PN49
MR NOLAN: Turning to your next statement, Mr Reed, that s one that s dated 29 May and its headed up Additional Statement of Steven Reed. Again, is that a statement that do you say that the facts deposed to in that statement are true to the best of your knowledge and belief?‑‑‑I do.
PN50
And that any opinion that s expressed is one that s conscientiously held by you?‑‑‑That's correct.
PN51
Again, subject to objections, I tender that statement, please, Commissioner.
*** STEVEN REED XN MR NOLAN
PN52
THE COMMISSIONER: Are there any objections to its admission?
PN53
MS McKENZIE: Commissioner, if I can just perhaps make the same objection, but perhaps a little bit more strongly in relation to this statement. If the document had been headed Additional Submissions of the FAAA, we wouldn't have had any objection and provided the Commission reason in that through that lens, we re content, but it doesn't contain any evidence as such. It is entirely submissions in reply and provided it s given that weight then I d have nothing further to say, but it does seem to be stretching the ‑ ‑ ‑
PN54
THE COMMISSIONER: When one makes a statement ‑ ‑ ‑
PN55
MS McKENZIE: ‑ ‑ ‑ evidence to call it a statement.
PN56
THE COMMISSIONER: I accept what you say and when you particularly look at, say, the opening words of paragraph 13, it s not the usual form that one would see evidence being given in, but I think I'm going to be cautious about how I treat it, I think, and I take the point you make.
PN57
MS McKENZIE: Thank you, Commissioner.
PN58
THE COMMISSIONER: But I think there s a fair bit of sort of conjecture that a lot of the statements from both sides, I think, make about this matter.
PN59
MR NOLAN: It s not conjecture. It s a firmly held opinion.
PN60
THE COMMISSIONER: Is it? Yes. Anyway, I'm not going to refuse to take it.
PN61
MR NOLAN: That's right. And we d anticipated that to a degree by picking up some of what Mr Reed said in our actual written submissions.
THE COMMISSIONER: Yes, I ve noticed that. Yes, all right. So the document is tendered and admitted and this will be marked as exhibit 2. Exhibit 2 is described as additional statement of Steven Reed dated 29 May 2015, exhibit 2.
EXHIBIT #2 ADDITIONAL STATEMENT OF STEVEN REED DATED 29/05/2015
*** STEVEN REED XN MR NOLAN
PN63
MR NOLAN: Yes. That's the evidence from the FAAA and I don't know whether it s convenient now to mark our submissions that we ve filed just so that we don t lose track of them.
PN64
THE COMMISSIONER: I can do that if it s convenient for everyone so we don t lose track of it. They won t be marked as exhibit, but we might give them an identifying number.
PN65
MR NOLAN: Yes. Our first submissions were dated 13 February.
PN66
THE COMMISSIONER: Let s have a look. Yes. Dated, I think, incorrectly 13 February 2014.
PN67
MR NOLAN: Yes, it is 2014. I should have proof read that. That is incorrect. It should have been 2015.
THE COMMISSIONER: Yes. So we might just mark the submissions of the FAAA, which are dated 13 February 2014, but that should really be 2015, we'll mark that FAAA1.
EXHIBIT #FAAA1 SUBMISSIONS OF THE FAAA DATED 13/02/2015
PN69
MR NOLAN: Yes. Then there were further submissions on 17 April.
PN70
THE COMMISSIONER: Yes.
PN71
MR NOLAN: I think I got the year right on that. I'll have to double‑check.
PN72
THE COMMISSIONER: Yes. They bear your name, I think.
PN73
MR NOLAN: That's right.
THE COMMISSIONER: So we'll mark that document FAAA2. That's submissions dated 17 April 2015.
EXHIBIT #FAAA2 SUBMISSIONS DATED 17/04/2015
*** STEVEN REED XN MR NOLAN
PN75
MR NOLAN: Then there were submissions in reply dated 29 May.
THE COMMISSIONER: Yes. So we'll mark that document FAAA3; FAAA3 being the submissions in reply by the FAAA dated May 29, 2015.
EXHIBIT #FAAA3 SUBMISSIONS IN REPLY BY THE FAAA DATED 29/05/2015
PN77
MR NOLAN: Yes, thank you, Commissioner.
PN78
THE COMMISSIONER: All right.
PN79
MR NOLAN: Mr Reed is available for cross‑examination.
PN80
THE COMMISSIONER: All right. Mr Baarini, do you want to cross‑examine Mr Reed at all?
PN81
MR BAARINI: Not at this stage, but I reserve my right subject to what might arise from Ms McKenzie s cross‑examination of the witness, if that s fine by you, Commissioner.
PN82
THE COMMISSIONER: I'm not exactly sure how we d treat that, but we ‑ ‑ ‑
PN83
MR NOLAN: It s a bit cheeky.
PN84
MS McKENZIE: I think he s suggesting I go first.
PN85
MR BAARINI: Well, I'm suggesting that my friend goes first. In a sense, we've got two applications that are heard together.
PN86
THE COMMISSIONER: Yes.
PN87
MR BAARINI: So it s only fair that I think the company cross‑examines the witness arising from the FAAA application before I get an opportunity to cross‑examine, if the need actually arises.
*** STEVEN REED XN MR NOLAN
THE COMMISSIONER: All right. We'll go down that pathway and we'll see how we travel. Ms McKenzie?
CROSS-EXAMINATION BY MS MCKENZIE [10.13 AM]
PN89
MS McKENZIE: Mr Reed, I think you say in your evidence that you were employed as a flight attendant by Qantas for the period 1988 to 2012?‑‑‑Correct.
PN90
So some 24 years you were and in long haul all of that time?‑‑‑International, yes.
PN91
If you can just - I think this is what your evidence is, but if I can just confirm throughout all of that time it was the practice of Qantas to provide dry cleaning cards from Lawrence Dry Cleaning for certain items of your uniform to be dry cleaned. Is that right?‑‑‑That's correct.
PN92
From the time at which you joined Qantas until such time as you left?‑‑‑It may have been before I joined Qantas, but at least as far as I know, from the time that I joined Qantas.
PN93
But certainly throughout your employment that was the practice. You refer to your involvement in paragraph 2 with the predecessor to the union, the Australian International Cabin Crew Association. Was that the union that at that time covered both male and female flight attendants or was it the male union?‑‑‑There were two unions and at that time both unions covered male and female flight attendants.
PN94
Was the predecessor were there two separate predecessor unions to that organisation?‑‑‑To the AICCA? There was one if I'm correct, there was one union that was the predecessor to the AICCA and they became the AICCA when they started taking female members.
PN95
I appreciate that this might relate to something before your time so if you don t have knowledge of this, say so, but do you recall that when there were two separate unions there was a separate award coverage for the two separate unions?‑‑‑I'm not familiar with that.
PN96
You don't have knowledge?‑‑‑No.
*** STEVEN REED XXN MS MCKENZIE
PN97
And you have played an active role in the union since at least, I think you referred to your time as a delegate from 1988. Is that right?‑‑‑1988 to 1989, during that period I started to get involved with the union. Yes.
PN98
So almost the entirety of your employment as a flight attendant you had some active role?‑‑‑Except for the period between 1997 and 2004.
PN99
At paragraph 7 you refer to your involvement in the last three EBA negotiations. Do I take it that that s a reference to the current EBA, EBA 9?‑‑‑Nine, eight and seven.
PN100
Its predecessor 8 and EBA 7. At paragraph 8 you refer to the circumstance that gave rise to the current proceedings and you refer to an approach from Mr Effron on 15 July 2015, which I take should be 2014?‑‑‑Yes, correct.
PN101
It was referring to an email from a member in relation to the payment of laundry in conflict with provisions of the agreement. Do I take it from your evidence, Mr Reed, that it has always been your view that the practice that Qantas has adopted since throughout your employment was in conflict with the agreement?‑‑‑I don't know that I d ever given it any thought prior to it being raised by the member.
PN102
Do I take it then that it was not until July 2014 when it was raised by the member that you turned your mind to the particular provision of the agreement in relation to uniforms?‑‑‑That would be fair, yes.
PN103
When you turned your mind to the agreement, you then formed the view, did you, that the current practice was not consistent with the terms of that agreement?‑‑‑In a strict sense, yes.
PN104
You say that you discussed that with Mr Mijatov and you then refer to an incident that occurred in 1999. Do I take it that you have personal involvement in that incident?‑‑‑No, I wasn't involved with the union at that time, but during doing some research in relation to uniforms through some archived files, I found that the FAAA had raised the issue of the serving jacket with the then cabin crew manager at the time through the then industrial officer Aaron Gadiel, who had approached the company. So I found correspondence in relation to that and some file notes.
*** STEVEN REED XXN MS MCKENZIE
PN105
Can I take you to that relevant correspondence which you've attached at SR2 and SR3; and SR2, which is a letter from this letter you referred from Mr Gadiel to the then general manager of cabin services, Ms de Bie, in relation to that where Mr Gadiel asserts that the company is to arrange for the hand washing of these jackets?‑‑‑I have that in front of me, yes.
PN106
The following letter, which is the SR3, which is the company s response, you see that the response is that the serving jacket will be included in the dry cleaning allocation of cabin crew?‑‑‑I see that, yes.
PN107
You say in your statement, or is it your evidence, Mr Reed, that the FAAA regarded that outcome as a resolution of that dispute?‑‑‑I didn't form a concluded view in relation to that. I just what I did when I found that correspondence is it seemed to me that the company had accepted there was a difference between what was actually being applied and what the wording in the then award said.
PN108
You say in paragraph 12 of your statement that you formed the view that given the company had previously conceded the very clear meaning of the clause. What do you mean by that?‑‑‑In paragraph 12?
PN109
Yes?‑‑‑Well, what I'm saying there is that given that in 1999 the association brought a conflict between what the wording in the award said and what the practice of Qantas was in relation to that and that they had, in SR3, when writing back to Mr Gadiel said that we re going to now add that to the dry cleaning allocation that they have accepted that they're responsible for the laundry of that item.
PN110
They ve agreed to the dry cleaning of the jackets, have they not?‑‑‑Correct. We say that that encompasses laundry.
PN111
After the agreement of Qantas that the jacket would be included in the dry cleaning allocation, there was no further correspondence to your knowledge ‑ ‑ ‑?‑‑‑No, I found ‑ ‑ ‑
PN112
‑ ‑ ‑ from the FAAA in relation to that matter?‑‑‑I found nothing in that file.
PN113
So we can assume, can we not, Mr Reed, that that issue was resolved as a result of that letter from Qantas to the FAAA?‑‑‑In relation to the serving jacket, yes.
PN114
Do you know that the serving jackets are currently not dry cleanable by Qantas?‑‑‑I'm not aware of that, no.
*** STEVEN REED XXN MS MCKENZIE
PN115
You're not aware of that? You wore serving jackets when you were flying?‑‑‑No. I was the customer service manager and we didn't wear serving jackets.
PN116
Mr Reed, you then discussed the circumstances in which the current dispute arose and you set out from paragraphs 18 onwards the conversation, I think, that you had with Mr O Connor?‑‑‑Yes.
PN117
It s correct, isn't it, Mr Reed, that the motivation for the FAAA bringing this issue is to do with some residual un‑satisfaction or about the meal allowance, how the meal allowance matter was dealt with?‑‑‑That was not the motivation of the FAAA.
PN118
You say it was the motivation of the members who raised this issue with you?‑‑‑I formed the personal view that the flight attendants had started going through the EBA line by line in the same way that the company had in relation to looking for a new way that they could enforce provisions of an EBA that may not have been done so before to find ways that flight attendants could enforce the provision of the EBA that might be to their benefit.
PN119
So a bit of tit for tat? Is that what it is?‑‑‑They're your words, not mine.
PN120
Well, I'm asking you whether you agree with them or not?‑‑‑Well, look, I think it would be fair to say that flight attendants were very unhappy with the decision of the company in relation to a longstanding practice in relation to the meal allowances and that the company had basically made it clear that they were going through the EBA line by line looking for ways to save money and I think the flight attendants felt equally compelled to do the same thing. So if that s tit for tat then I accept that.
PN121
At paragraph 31 of your statement, Mr Reed, you refer to a letter, 13 October 2015. I take it that should be 14 again?‑‑‑My apologies. Yes, that's correct.
PN122
You say in paragraph 33 in response or in relation to the letter that you received from Mr O Connor that you felt that his response was a little cryptic as Qantas has not been pressed on this issue during the life of the previous uniform. What do you mean by that?‑‑‑If I recall, Mr O Connor wrote back in words that Qantas would pay for the laundry items that were not no, Mr O Connor had written back to the FAAA if I can just refer to that letter and refresh my memory.
PN123
Certainly?‑‑‑Mr O Connor said on 21 November:
*** STEVEN REED XXN MS MCKENZIE
PN124
Qantas will continue to pay laundry costs on Qantas uniforms.
PN125
So he didn't say dry cleaning. He said:
PN126
Laundry costs on Qantas uniforms in accordance with the EBA, as has been the practice prior to the introduction of the new uniform last year.
PN127
So when I say it was a little cryptic, because he d used the term laundry and not dry cleaning as they had throughout these sort of discussions that we've had with them, I wasn't sure exactly what he was referring to, so I was concerned was he now saying that in relation to the correspondence between the FAAA and Qantas that he would now pay the laundry costs of the shirts and the various items that we had said were not being dry cleaned or was he saying something else. So that s why I wrote back to him and said, Look, for abundant clarity, I need to sort of meet with you probably to completely understand what it is that you're saying there.
PN128
I see. You're not suggesting, though, are you, Mr Reed, that at someone who s been a flight attendant for some 22 or more years that you did not understand that laundry in the context of this EBA meant the dry cleaning of the uniforms?‑‑‑I think as a flight attendant, I had always accepted that being the case, but when it was raised with me in the terms that it was by the member in 2014 and by and with Mr Mijatov, I took a different view of it looking at the strict interpretation of the wording in the enterprise agreement as opposed to what I might have considered prior to that. I don't think that I d ever really turned my mind to it before that.
PN129
So notwithstanding your involvement in three EBA negotiations and notwithstanding your involvement as an active member of the FAAA throughout your entire flying career, you're saying that you did not ever turn your mind to what the word laundry meant in the context of this EBA and its predecessors?‑‑‑That would be fair. That's correct. That would be fair.
PN130
But you didn't have any reason to think, did you, that the laundering of uniforms under the EBA was being satisfied by the dry cleaning by Qantas of uniform items?‑‑‑I d never turned my mind to it.
PN131
When you first started flying, Mr Reed, do you recall what your uniform comprised of then?‑‑‑I do.
*** STEVEN REED XXN MS MCKENZIE
PN132
What was it?‑‑‑Knitwear, jackets, paints, overcoats, ties, shirts, belts, wallets and so basically everything that you were other than underwear and socks and shoes.
PN133
The jacket and the trousers, they were wool wool jackets, wool trousers?‑‑‑I can't remember what the fabric was made of at the time, but they were both washable and dry cleanable.
PN134
From 1988 the material was washable?‑‑‑As far as I know, yes.
PN135
Did you ever wash your uniform?‑‑‑Yes, I did.
PN136
Did you submit it into dry cleaning and have it dry cleaned by Qantas?‑‑‑I did.
PN137
And the knitwear, dry cleanable?‑‑‑There were two there were different sets of knitwear; because we had several uniform changes. The new uniform came in in 1986, which was the then Yves Saint Laurent uniform. So when I joined in 1988, it was some two years later and they were still in what I would probably best describe as some sort of transition of additional pieces of uniform that were coming on line. So the knitwear started off being dry cleanable and I can't recall if it was ever washable, but I do recall that some flight attendant chose to wash various items of uniform being the dry cleaning fluid built up and it smelled after a while and it never really cleaned it. So you would wash it and then you'd look at the colour of the water and you'd sort of think, Oh, my God.
PN138
I put it to you, Mr Reed, that the uniform items in 1988 were dry clean only made of dry clean only fabrics and they were not items that should have been washed or could have been washed. Do you agree with that?‑‑‑I don't recall. It s a long time ago, but if you have the books that have that information in it, then I accept that, but I don't recall.
PN139
All right?‑‑‑Because we've had about four uniforms during the time that I flew.
PN140
Throughout the time that you flew, the uniforms, is it fair to say, comprised primarily of the same components, jackets, trousers, knitwear, tie?‑‑‑The last uniform didn't come with knitwear. The occupational health and safety committee had to press for knitwear and then it was not sourced by Martin Grant, the uniform manufacturer. You had to purchase it and then claim it. So various people bought various different styles. Well, it had to be like a black jumper or something like that, but then you had to wash it or some were dry cleanable, some were washable, depending on what you purchased.
*** STEVEN REED XXN MS MCKENZIE
PN141
So are you saying that the uniform before the current Martin Grant one did not Qantas didn't provide knitwear as part of that uniform?‑‑‑I think that was the George Gross and Harry Who uniform and I don't recall - I think there was knitwear, but I just can t remember the details of it.
PN142
But the jacket and the trousers were ‑ ‑ ‑?‑‑‑Dry clean only.
PN143
‑ ‑ ‑ they d been uniform items, dry clean only, that had been provided?‑‑‑Although I think they could still be washed. The company allowed them to be dry cleaned at their expense.
PN144
And they were marked dry clean only to the best of your recollection or you don t recall?‑‑‑I don't recall.
PN145
Do you have any recollection, Mr Reed, of the dry cleaning or the caring and maintenance of uniforms being the subject of any industrial claim by the FAAA in the time in which you were involved in the union?‑‑‑Not that I'm aware of, no.
PN146
You referred earlier to the archives of the FAAA, but I take it that in preparation for these proceedings that you looked at the union s own records?‑‑‑I have, to the best of my ability.
PN147
Have you been able to find any evidence of any claim or dispute other than the 1999 issue in relation to the caring and maintenance of uniforms?‑‑‑I haven't, no.
PN148
Are you family with the award cover that s applied to flight attendants during the time at which you flew and since your subsequent involvement in the FAAA?‑‑‑The underpinning award?
PN149
Yes?‑‑‑So there was a Qantas Airlines Award and then it was then there was the underpinning modern award more recently.
PN150
In relation to the relevant provisions of EBA 9 that are the subject of these proceedings, are you aware that the words of those provisions have been taken from previous awards that have applied to flight attendants?‑‑‑Yes. Almost identically, I think.
PN151
I think I'm just about done. Just one further point, Mr Reed. You say in paragraph 45 of your statement and you're talking about the various allowances that flight attendants receive and you say in relation to the standard daily travel allowance in 45:
*** STEVEN REED XXN MS MCKENZIE
PN152
That allowance is not an allowance that deals with laundry of uniforms at home base.
PN153
What do you base that opinion on?‑‑‑Because it makes reference to costs associated with overseas laundering. It doesn't ‑ ‑ ‑
PN154
So it just ‑ ‑ ‑?‑‑‑It doesn't mention that at all.
PN155
So it s the reference to the overseas laundering that s the basis of that?‑‑‑Correct. Because I always assumed that if it was for anything else, it would have specified it.
PN156
You say that it s historically been used by flight attendants to pay for laundry costs outside of home base whilst away on a trip, including, but not limited to, personal clothing?‑‑‑Correct.
PN157
It wouldn't, of course, exclude the washing of uniforms overseas, would it?‑‑‑Washing of what do you mean, paying for someone to wash your uniforms or are you talking about dry cleaning?
PN158
If on your flight over to a trip you spilt something on your uniform and you were in LA for a few days, there s no reason why your uniform couldn't be laundered?‑‑‑You would be entitled to claim that back from the company through CCOM - under the provisions of the Cabin Crew Operations Manual.
PN159
Why would the allowance not cover that overseas laundry?‑‑‑Because it covers your personal clothing.
PN160
Does it say that in the clause?‑‑‑That's how it s always been interpreted by the company.
PN161
I see?‑‑‑Because they make provision for you to be able to claim back any uniform dry cleaning overseas.
PN162
So the practice of the company in allowing flight attendants to claim for any overseas laundering of uniforms is the basis upon which you say that that s how that clause should be read, is it?‑‑‑In relation to jackets and pants and that sort of stuff, yes.
*** STEVEN REED XXN MS MCKENZIE
PN163
So if anything was to require a uniform to be washed when the flight attendant arrived at their overseas port, you're saying that this allowance would not cover the cost of any uniform cleaning overseas?‑‑‑I don't know that I ve turned my mind sufficiently to that.
PN164
But you'd agree, wouldn't you, that the clause does not in its terms restrict the laundering to personal items?‑‑‑Do you mind if I just refresh myself with the clause itself?
PN165
Certainly. I can show you a copy of the full clause?‑‑‑I ve got a copy of it. Thank you.
PN166
It s clause 13?‑‑‑I ve got it in front of me. I'm just reading it. Yes.
PN167
So you'd agree that it s not limited ‑ ‑ ‑?‑‑‑No.
PN168
To personal clothing?‑‑‑If a flight attendant needed something to be done overseas to their uniform, that allowance would cover it, to the extent that it s in conflict with the CCOM.
PN169
Yes. And, similarly, in paragraph 48 of your statement you talk about the incidental allowance which is paid to the crew who work under part 2 of the EBA and you say it s not an allowance that covers the cost of laundering of uniforms. Would you agree, though, that there is nothing in the terms of the incidental allowance which would preclude the laundering of uniforms overseas as coming within that allowance?‑‑‑Other than that Qantas makes provision in the Cabin Crew Operations Manual to pay for dry cleaning of uniforms overseas if needed.
PN170
Yes, but you'd agree that the clause in the EBA itself does not contain that limitation?‑‑‑I'll just read that clause, if you don t mind. Well, the incidentals allowance doesn't make any provision other than arising out of their employment whilst travelling. It doesn't specify what it s for.
PN171
Yes, but you made the statement that it s not an allowance that covers the cost of laundering of uniforms and I'm putting it to you that you don t have any basis for making that statement, do you?‑‑‑Only that it s not provided for in the clause itself.
*** STEVEN REED XXN MS MCKENZIE
PN172
In clause 3.3.3, which is a provision dealing with the annual salary that is paid for the part 2 employees, you'd agree, wouldn't you, that the annual salary is expressly intended to cover allowances for grooming and uniform maintenance?‑‑‑That's what it says.
PN173
You say in paragraph 49 that this doesn't include laundering or dry cleaning of uniforms. What s the basis for that opinion?‑‑‑I see maintenance of the uniform as a separate issue to laundering of uniform because the company have provided, during the EBA negotiations where we were discussing in EBA 8 where the part 2 conditions were first being negotiated, that the company agreed that they will provide a Lawrence Dry Cleaning card for the purposes of uniform laundry and dry cleaning of uniform to the part 2 flight attendants.
PN174
So does it follow from that that you say the agreement to extend the provision of the Lawrence Dry Cleaning cards to the part 2 employees meant that the reference in the allowance the salary to the maintenance of uniforms did not cover the obligation to clean the uniforms?‑‑‑That's what I say, yes. I believe that what they meant by maintenance is if you need buttons sewn on or, you know, something like that, you know, like there s a tear in a jacket, you need that repaired or you've got an incident that happens overseas, you've got an incidentals allowance to cover that, but dry cleaning of uniforms was provide for by the dry cleaning card.
PN175
Just one final thing, Mr Reed. In the time that you were a flight attendant, it was always part of your uniform that you wore a shirt, wasn't it?‑‑‑(No audible answer).
PN176
In the various different uniforms that you wore over the 22 years, there was always a shirt ‑ ‑ ‑?‑‑‑As a male flight ‑ ‑ ‑
PN177
As a male there was also a shirt ‑ ‑ ‑?‑‑‑As a male flight attendant, yes.
PN178
That was part of the uniform, wasn't it?‑‑‑Yes.
PN179
Those shirts were never laundered by Qantas in the time that you flew, were they?‑‑‑No.
PN180
No further questions?‑‑‑If I could just one thing. I do recall that Qantas would pay for the ironing of those shirts overseas, if the hotel didn't provide irons and ironing boards.
PN181
Overseas?‑‑‑Yes.
*** STEVEN REED XXN MS MCKENZIE
PN182
Thank you, Mr Reed.
PN183
THE COMMISSIONER: Mr Baarini, do you have anything?
PN184
MR BAARINI: No questions, Commissioner.
PN185
THE COMMISSIONER: Mr Nolan?
PN186
MR NOLAN: Yes. There s no re‑examination. Might Mr Reed be allowed to resume his position in the body of the court?
PN187
THE COMMISSIONER: Could I ask him a question perhaps, if that s all right with you?
PN188
MR NOLAN: It might be objectionable.
PN189
THE COMMISSIONER: It probably is.
PN190
You mentioned the items that you'd been issued with as uniform and you mentioned things like belts and wallets?‑‑‑Yes.
PN191
Are they considered part of your uniform?‑‑‑Well, they came from Qantas uniforms, so Qantas had particular belt buckles with logos on it and that sort of stuff. So if they wanted you to wear a particular belt with their logo on it, they had to supply it. So you couldn't wear your own belt. You had to wear a Qantas belt and then if you were selling duty free, they provided you with a black sort of wallet that contained a lot of slots for different currencies so that you could give passengers change and so that you didn't have to provide your own sort of multi-layered wallet to hold currencies for duty free selling. They also provided in cabin bags as well. So there were various types of in cabin bags that they supplied; where there were wheelie bags and there were bags that went on top of the wheelie bags and then there were suit packs, because when you re positioned to a flight to operate so you might be a passenger from, say, Sydney to Singapore and then you'd be staying in Singapore a night and then operating from Singapore back to Sydney or something like that. If you weren't carrying a you were actually required, if you weren't wearing your uniform as a passenger, to carry your entire uniform with you in the cabin of the aircraft. So they would provide you with a suit pack in order to carry those uniform items and it would be Qantas supplied.
*** STEVEN REED XXN MS MCKENZIE
PN192
I notice there s a provision in the agreement about heading and being required to have your uniform with you?‑‑‑Yes.
PN193
Just getting back to the clothing items that you're supplied with, in terms of the apparel that you actually wear, what pieces are not supplied? Underwear?‑‑‑Female flight attendants, they get supplied with pantyhose.
PN194
Yes?‑‑‑Male flight attendants get a slightly higher standard daily travelling allowance that covers the provision of socks. So the female SDTA is slightly less than the males because the ‑ ‑ ‑
PN195
I noticed those differences?‑‑‑The female gets supplied with pantyhose by the company and the males have to buy their own socks.
PN196
So Qantas doesn't supply you with socks?‑‑‑No.
PN197
It doesn't supply you with shoes?‑‑‑No.
PN198
It doesn't supply you with underwear?‑‑‑No.
PN199
In terms of underpants or a singlet, if you chose to wear one or something?‑‑‑No.
PN200
And so it then supplies you with everything else that you wear, that is the shirt, the trousers, any jackets, coats, hats and other things. It s really everything about that?‑‑‑Yes, yes. And most of those things are logo d and part of a design so that they have like a book that they put out. So when Martin Grant, for example, designed the Qantas uniform, part of the remit from the company is that you must provide a uniform that in a holistic sense covers everything from head to toe; that they will specify what sort of shoes you have to buy, what colour they have to be, what the maximum heel height can be, particularly for females, what the soles of the shoe have to be, so it has to be a leather sole. It can t be a rubber ripple sole.
PN201
In terms of the shirts that the male attendants wear, they're both long and short sleeve?‑‑‑Correct.
PN202
They're white or they're currently white, I think?‑‑‑Currently white.
*** STEVEN REED XXN MS MCKENZIE
PN203
Do they have a logo on them?‑‑‑I think they do. They might have like a Q or something like that or something like they quite often have like a little provision, like a clip thing, that you can put your ID card on as well, and they might have a square patch on the other side where you can put a set of wings or something, so that it just doesn't go through the material of the shirt. It s reinforced at the back. So it s a particular style shirt.
PN204
But do they have the Qantas kangaroo logo on them?‑‑‑I have I wasn't in that uniform when I left so ‑ ‑ ‑
PN205
When you were working, did you have on your shirt the Qantas logo?‑‑‑Yes.
PN206
What about the other items, the jackets and so forth? Do they have the Qantas logo on them?‑‑‑Various different styles of branding, so that you can clearly identify it is a Qantas uniform.
PN207
The same applies for the female? What are they called, the shell tops or the ‑ ‑ ‑?‑‑‑Quite often they were riddled with kangaroos. So they might be sort of like a whole Aboriginal print with kangaroos all over it or something. So I don't know what the female shell top is at the moment. I don't know what it s got on it. I'm not an expert in the female uniform, unfortunately, but they're usually logo d so that you can clearly identify them as Qantas uniform items.
PN208
Yes?‑‑‑So whether you were wearing your jacket or not, if you're out of your jacket and you're just wearing the blouse or the dress or something like that or the shell top, you can clearly see it s a Qantas flight attendant.
PN209
It looks like a Qantas uniform?‑‑‑Correct, yes.
PN210
All right.
PN211
MS McKENZIE: Commissioner, I was going to tender this a bit later, but it might be helpful in view of your questions to hand up to you a copy of the Style On Q Booklets, which reflect the current uniforms for all Qantas employees, including the cabin crew.
PN212
THE COMMISSIONER: Is there no objection to this?
PN213
MR NOLAN: No objection, no.
*** STEVEN REED XXN MS MCKENZIE
PN214
THE COMMISSIONER: All right. That might help me a bit. Perhaps we'll mark it as an exhibit.
PN215
MS McKENZIE: I think in fact, Commissioner, the contents of this is photocopied and an attachment to Mr McKenna s.
PN216
THE COMMISSIONER: Yes.
PN217
MS McKENZIE: But it might be helpful for you to see it in all its beautiful fuchsia pink.
PN218
THE COMMISSIONER: I remembered seeing a coloured version of a page of it at an earlier proceeding.
PN219
MS McKENZIE: That's right.
PN220
THE COMMISSIONER: Yes, all right. I think we might unless there s any objection, we might mark this as an exhibit in the proceedings.
PN221
MR NOLAN: No objection.
THE COMMISSIONER: All right. This booklet will become exhibit 3. Exhibit 3 is described as the Qantas Style On Q Booklet, exhibit 3.
EXHIBIT #3 QANTAS STYLE ON Q BOOKLET
PN223
MS McKENZIE: Commissioner, perhaps if I can just draw your attention - pages 84 onwards set out the uniform for cabin crew. The booklet contains the uniform guide for all Qantas uniforms, but pages 80, 84 to 107 ‑ ‑ ‑
PN224
THE COMMISSIONER: But you can t see whether the shirt has got a log on it, can you?
PN225
MS McKENZIE: If you look at the front, Commissioner, on page 25, there s a picture a standard picture of the shirt and I think there s a better photo. On page 28 there s a picture of a man in a white shirt, which I understand is the same shirt that all including cabin crew where. That doesn't look like it s got any logo. That's a plain white shirt, although as Mr Reed mentioned, you can see there s a little ‑ ‑ ‑
*** STEVEN REED XXN MS MCKENZIE
PN226
THE COMMISSIONER: Loop.
PN227
MS McKENZIE: ‑ ‑ ‑ loop on it, which is obviously customised for the wearing of either security passes or identification.
PN228
THE COMMISSIONER: But of itself it wouldn't be identifiable as a uniform.
PN229
MS McKENZIE: By itself, the white shirt, would not be.
PN230
THE COMMISSIONER: No.
PN231
MS McKENZIE: By itself, but it s clearly intended to be worn as part of the uniform and in the crew pages and the booklet contains the instructions also for what pieces of uniform are to be worn and I think it s fair to say that for cabin crew when they're interfacing with customers, they would not be permitted to wear simply the shirt without - you know, and trousers without either the jacket or the vest.
PN232
MR NOLAN: It can t be any old white shirt. It s got to be that shirt.
PN233
MS McKENZIE: I think Mr Nolan we would not take issue with the proposition that Qantas provides the shirts and expects crew to wear the shirts that are provided by Qantas.
PN234
THE COMMISSIONER: Yes, yes. I don't think that s in dispute, is it?
PN235
MS McKENZIE: Yes.
PN236
THE COMMISSIONER: It s just from to time I ve seen - I think further in the booklet with the ground crew and something that they wear, it s got the clearly it s got yes, it s got ‑ ‑ ‑
PN237
MS McKENZIE: They ve got a big kangaroo.
PN238
THE COMMISSIONER: The freight people have the little kangaroo.
*** STEVEN REED XXN MS MCKENZIE
PN239
MS McKENZIE: Yes, yes.
PN240
THE COMMISSIONER: Yes, the red flying kangaroo. One would say that s clearly identifiable as the employer s uniform in any circumstance, whereas the white shirt may not be so.
PN241
MS McKENZIE: Yes, by itself. That's right, sir.
PN242
THE COMMISSIONER: Yes. Similarly, the trousers. If the trousers are not the subject of the disputation, but the shirt is. As I understand it, the trousers are dry cleanable and there s no ‑ ‑ ‑
PN243
MS McKENZIE: Dry clean only and are dry cleaned and have always been dry cleaned.
PN244
THE COMMISSIONER: And dry cleaned, yes. But they don t show or demonstrate any particular logo or other identifiable characteristic which would of themselves make them a uniform.
PN245
MS McKENZIE: No.
PN246
THE COMMISSIONER: No.
PN247
MS McKENZIE: But they have been provided by Qantas and are dry cleaned by Qantas.
PN248
THE COMMISSIONER: Yes.
PN249
MR NOLAN: I think the point remains that if you took it upon yourself to wear a different kind of set of black trousers, you know, with flares or something else, you'd be pulled up pretty quickly. You're expected to wear the issued clothing.
PN250
THE COMMISSIONER: I think that s fairly obvious in all of this. All right. At least now I have an appreciation of whether the actual shirts contain the logo and it appears that the current shirts don t.
*** STEVEN REED XXN MS MCKENZIE
PN251
Could I just ask you, Mr Reed, you gave some evidence about the standard daily travelling allowance? Could you just help me understand how - this is clause 13 in the agreement and how this works? There s an overseas daily travelling allowance. Do you have the document there? Do you have the agreement document?‑‑‑What was the ‑ ‑ ‑
PN252
It s clause 13?‑‑‑What paragraph? Did I mark it with a SR16. Okay. Excuse me. Okay. I have that. Yes.
PN253
I'm just trying to understand how this operates. In 13.3 there s an overseas daily travelling allowance. In this document it s 46.89 per day. Do you see where I am?‑‑‑Yes.
PN254
Then over the page at 13.5 there s a standard daily travelling allowance and the standard daily travelling allowance for overseas is - there s a two-tiered figure, one for a female at one level and a male at another. Right?‑‑‑Yes, I understand that.
PN255
Do I understand that when you fly overseas as a flight attendant, you get the overseas daily travelling allowance of 46.89 and then in addition to that, you get the standard daily travelling allowance, in the case of a male at 53.40. Is that right?‑‑‑Per week. That's correct.
PN256
Per week?‑‑‑Insofar as I was a Qantas Airlines flight attendant operating under part 1 of the enterprise agreement. QCCA flight attendants who operate under part 2 of the enterprise agreement don t get the standard daily allowance. They don t get the ODTA or the ADTA. They only get the incidentals allowance.
PN257
But these things are they add together. You'll get one daily travelling allowance that is called the Overseas Daily Travelling Allowance?‑‑‑Correct.
PN258
And that s a daily figure?‑‑‑For each night that you are overseas. So it has to encompass a night away.
PN259
But then in addition to that you get a standard daily travelling allowance which is this per week figure?‑‑‑Correct.
PN260
In 13.5.1, this deals with the basis for this payment of the second component here, if I can describe it as such, and it says this is, Costs associated with overseas laundering. You were asked some questions about that?‑‑‑Yes.
*** STEVEN REED XXN MS MCKENZIE
PN261
Do I understand that a flight attendant who was getting both of these allowances, because let s say they were in Los Angeles or something, but that on the way over there was an accident with the red wine or something and so they had to get, let s say, both a shirt and a jacket cleaned before they could return whilst they're on slip in Los Angeles, that in those circumstances they would be able to make an additional claim for the cost of the laundering of the jacket and the shirt?‑‑‑If it s a uniform item, yes. If it s personal clothing, then no.
PN262
I'm talking about ‑ ‑ ‑?‑‑‑Uniforms?
PN263
Yes?‑‑‑Yes.
PN264
So they would be able to make a claim for that in addition to having received this allowance?‑‑‑Under Qantas policy. That's not contained in the enterprise agreement. It sits in the Cabin Crew Operations Manual.
PN265
So the overseas laundry ‑ ‑ ‑?‑‑‑I think those circumstances would be very rare, though, because ‑ ‑ ‑
PN266
I beg your pardon?‑‑‑I think those circumstances would be very rare because most crew carry two uniforms with them for just such eventualities.
PN267
But nevertheless, if a person is away at a foreign port and they took items of their uniform in for laundering, whether that s both and that s why I used the idea of a shirt and a coat or shirt and trousers, so one was being dry cleaned, the other was simply being washed in the conventional method and then being ironed, presumably, that you could make a claim when you returned home and be paid or reimbursed for the cost of that?‑‑‑For the not for the laundering of the shirt, but for the dry cleaning of the jacket or the pants.
PN268
So you wouldn't be able to make a claim for the shirt?‑‑‑The shirt or the blouse or the shell top, no. As Qantas policy currently stands.
PN269
All right, thank you for answering those questions. Does anyone have anything arising from my questions at all?
PN270
MR NOLAN: No. Commissioner.
PN271
MR BAARINI: No, Commissioner.
*** STEVEN REED XXN MS MCKENZIE
PN272
THE COMMISSIONER: No? Good.
Thank you. You're released and discharged. Thank you for giving your evidence.
<THE WITNESS WITHDREW [10.56 AM]
PN274
MR BAARINI: Commissioner, I understand that the FAAA has no further witnesses. I intend to call ‑ ‑ ‑
PN275
THE COMMISSIONER: All right. We'll keep moving along. So we re up to now, Ms McKenna. Is that right?
PN276
MR BAARINI: Ms McKenna.
PN277
THE ASSOCIATE: Please state your full name and address?
MS McKENNA: Susan McKenna (address supplied).
<SUSAN MCKENNA, AFFIRMED [10.57 AM]
EXAMINATION-IN-CHIEF BY MR BAARINI [10.57 AM]
PN279
MR BAARINI: Ms McKenna, if you could state your full name and address?‑‑‑Susan McKenna (address supplied).
PN280
Your current occupation?‑‑‑Flight attendant.
PN281
Have you prepared and filed two witness statements in the proceedings that you're here for today?‑‑‑Yes, I have.
PN282
Do you have copies of those statements with you?‑‑‑They're actually over there on the bench.
PN283
I wonder whether we can hand copies of those statements to the witness, Commissioner?
PN284
THE COMMISSIONER: Yes.
*** SUSAN MCKENNA XN MR BAARINI
PN285
MR BAARINI: Is the first of those statements signed and dated by you on 15 April 2015 containing paragraphs 1 to 32?‑‑‑Yes.
PN286
Including attachments SM1 to SM6?‑‑‑Yes.
PN287
Is that statement true and correct?‑‑‑Yes, it is.
PN288
I tender that statement, Commissioner.
PN289
THE COMMISSIONER: The document is tendered. Is there any objection to its admission?
PN290
MS McKENZIE: Commissioner, I just make the same reservation that I made in relation to Mr Reed in relation to the opinion evidence, but I'll be content to make submissions as to weight.
THE COMMISSIONER: All right. Yes, thank you. On that basis then the document is tendered and admitted and this will be marked as exhibit 4. Exhibit 4 is described as the Witness Statement of Susan McKenna dated 15/04/2015, exhibit 4.
EXHIBIT #4 WITNESS STATEMENT OF SUSAN McKENNA DATED 15/04/2015
PN292
MR BAARINI: Thank you, Commissioner.
PN293
The second statement that s been filed is your further statement in reply. That's been signed and dated 25 May 2015?‑‑‑Yes.
PN294
Containing paragraphs 1 to 24. Is that correct?‑‑‑Yes.
PN295
Is that statement true and correct?‑‑‑Yes, it is.
PN296
I tender that statement, Commissioner.
*** SUSAN MCKENNA XN MR BAARINI
THE COMMISSIONER: Is there any objection to its admission? No? The document is tendered, admitted without objection. This will be marked as exhibit 5 and it s described as the Further Witness Statement of Susan McKenna dated 25 May 2015, exhibit 5.
EXHIBIT #5 FURTHER WITNESS STATEMENT OF SUSAN McKENNA DATED 25/05/2015
PN298
MR BAARINI: Thank you, Commissioner. Commissioner, just with your indulgence, if I can ask the witness just a few general questions?
PN299
Ms McKenna, could you just describe for the Commission the role that you do in your current occupation with the company?‑‑‑Yes. As a flight attendant, it s predominantly security and safety focused with the secondary role of food and beverage service.
PN300
Can you describe for the Commission what work you actually do when you're travelling?‑‑‑Basically, safety and security of passengers on board an aircraft.
PN301
Can you describe the length of the trip and how long you stay in slip ports?‑‑‑Okay. I'm a Melbourne based flight attendant and we have three designations, Singapore, Hong Kong and Los Angeles. So our flying time can range from anywhere between seven hours and 15 hours. Our time, our slip time, in destinations can range between 24 hours and up to about 72 hours currently.
PN302
How many trips a week would you do?‑‑‑We can if we re doing the shorter trips, we can do nine trips or 10 trips in eight weeks, an eight-week roster.
PN303
And so per week how many roughly a trip can you do?‑‑‑We can do up to probably two and a half sectors. So a trip and a little bit. It crosses over from week to week.
PN304
Just for the purposes of the Commission ‑ ‑ ‑?‑‑‑Probably two less than three flights a week.
PN305
So when you land in Los Angeles, how much time do you spent there before returning back to Melbourne?‑‑‑As a Melbourne based flight attendant, it s about 54 hours at least.
*** SUSAN MCKENNA XN MR BAARINI
PN306
What uniform do you wear for the purposes of fulfilling your obligations as a flight attendant on that ‑ ‑ ‑?‑‑‑It s all Qantas issued uniforms, so a jacket. I wear the waistcoat, trousers. I wear the long-sleeve white shirt, the fuchsia tie, scarf, and then I have my own shoes that I purchase and also stockings that are uniform issued.
PN307
So with the shoes, they're not company issued shoes?‑‑‑No.
PN308
Does the company issue shoes?‑‑‑No. We can purchase them through their preferred retailers, but it s not we don t exclusively have to do that.
PN309
In relation to those items, is there anything, insignia or anything that would identify those items as being Qantas property?‑‑‑Each uniform item has a label on it which says Qantas but there is actually, on the new uniform, not a Qantas wording or a kangaroo like there used to be with the previous Morrissey uniform.
PN310
With the Martin Grant uniform, there isn't a kangaroo or a label that would identify it. So if I take you to the the shirt that you said, what colour is that?‑‑‑White.
PN311
Is there anything on the shirt that would identify it as a Qantas uniform?‑‑‑The actual garment care label in it.
PN312
At the back?‑‑‑Yes.
PN313
But a passenger looking at you wouldn't know whether you were wearing your own white shirt or a company issued shirt. Is that correct?‑‑‑Probably not, no. We know it is because it s tailored specifically and if you wore a different shirt, I would notice that it wasn't the uniform issued one, but you're average passenger probably wouldn't know the difference.
PN314
So what other so when you wear one uniform, obviously whilst you're on the plane, do you take any additional uniform or items with you for the return flight or ‑ ‑ ‑?‑‑‑Yes. Like if I'm doing a Los Angeles flight, it could be a 13 and a half hour flight to Los Angeles. We sign on an hour and a quarter previously. We don t sign off until half an hour after the flight lands. So we could be looking at a 15-hour tour of duty, as it s called. So I would take additional items, trousers, an additional shirt, to wear for my return flight.
PN315
Is that a requirement of the company or is that a personal choice of yours?‑‑‑That's just a personal choice and most crew will do that, just like when you're serving passengers, it s not unusual that you'll get coffee or something spilt on you and ‑ ‑ ‑
*** SUSAN MCKENNA XN MR BAARINI
PN316
If you and others did not do that and coffee was spilt on any of your uniform that you were wearing, what would you do on the return flight?‑‑‑I d have to clean it in my hotel room or I could get it dry cleaned at my expense.
PN317
Just on your expense, are you able to claim that expense back from the company on your return back to Melbourne?‑‑‑No. That's the standard daily travelling allowance that we get would cover that dry cleaning cost, so it s not claimable.
PN318
Just for the purposes of clarification for the Commission, in addition to your normal salary, do you pick up the overseas daily travelling allowance?‑‑‑It s built into our fortnightly pay amount.
PN319
Is that billed for the purposes of each of those trips that you take so it s not a set fee, it s determined on the basis of the number of nights that you stay overseas. Is that correct?‑‑‑I think the $51 that we get per week is a built in amount that s paid weekly.
PN320
Irrespective of the number of well, let s assume you don t fly that week, do you still pick up that allowance?‑‑‑I think, yes, it is built in to the pay.
PN321
In relation to the standard daily travelling allowance, what do you understand that standard daily travelling allowance to compensate you for?‑‑‑It s for grooming. It s for telephone calls. It s for transportation. It s for uniform cleaning when you're in your slip port up line. There s a variation of things that the amount covers.
PN322
So if you were to launder overseas, you would ‑ ‑ ‑?‑‑‑Absorb the entire amount.
PN323
Sorry?‑‑‑You would probably absorb the entire amount.
PN324
Do you not pick up a receipt and then go back to the company and say this occurred this time?‑‑‑No, because it s covered the amount is covered. So if you then claimed it, you'd be double dipping.
PN325
If the amount was in excess of the $51 allowance, let s assume that it was $100, you'd be out of pocket, would you not?‑‑‑Yes.
PN326
What would you do in those circumstances?‑‑‑Just cop it on the chin, I think, basically.
*** SUSAN MCKENNA XN MR BAARINI
PN327
Is that the reason that you take your own additional uniform as back up?‑‑‑Well, it s also practical like a practical measure because you don't know that you're going to put your uniform in for submission at the hotel. You may not get it back in time. You may get turned around and sent away on another trip and not have those uniform items returned to you in time. It s just a practical measure to carry additional items.
PN328
In your first statement to the Commission, you've attached at SM4, a receipt, dry clean only which is the label in one of the uniform items. Can you explain to the Commission why it is that this has become an issue for you, having been with the company for 22 years?
PN329
MS McKENZIE: I object to that question, Commissioner. I mean, the evidence‑in‑chief is on the statement. It s a bit hard to see the basis upon which these questions are now being asked.
PN330
THE COMMISSIONER: It s an elaboration, I suppose, but we want to be careful that we don t start introducing material that takes the other side by surprise.
PN331
MR BAARINI: Yes, I appreciate that fine line, Commissioner. I guess the point that we I just wanted to expand on that SM4 receipt that s included in the witness statement, Commissioner, and if my friend is taken by surprise as to what new evidence is borne out because of it, I'm happy to have a contest of ideas in relation to that.
PN332
But just in relation to the steps that you've taken to put uniforms in for laundering and the experience that you've had with your supplier in Melbourne for some of the items that you've sought to launder?‑‑‑I actually refer to SM4 in my second statement, paragraph 8, whereby this dry clean label only is on my uniform cardigan that was issued in we started wearing the uniform in December 2013. At that stage the label on my initial ‑ ‑ ‑
PN333
THE COMMISSIONER: Sorry, I think you mean paragraph 7, don t you?
PN334
MR BAARINI: Paragraph 7. It s a correction to my initial statement, paragraph 7?‑‑‑Okay, sorry. I ve got eight here.
*** SUSAN MCKENNA XN MR BAARINI
PN335
Yes?‑‑‑And my initial issued cardigan had a dry clean only label on it, but then when I went to take it to the dry cleaners at one stage they said, No, you're not allowed to have that dry cleaned any more. It wasn't very well communicated to crew, but it was actually on the cabin crew web site that the label had been incorrectly affixed to the cardigan and new labels would be put on future issued cardigans and the cardigan was actually now a hand wash or for a non-dry clean item as far as submission of our uniform items were concerned and it was a washable item and we could therefore launder it ourselves.
PN336
What s the process of you, as far as your understanding of laundering what is the process to launder?‑‑‑For me if it s the white shirt, so I soak them in Napisan and hot water. I then wash them, hang them out to dry and make them presentable for wearing for my next shift.
PN337
When you take an item to the supplier in Melbourne for laundering, what would you expect the process there to be?‑‑‑I basically hand it over, sign where I have to, sign and they return to me nicely pressed, tailored. The tailored uniform pieces that I can submit come back nicely pressed and clean.
PN338
Thank you, Commissioner. No further questions.
PN339
MR NOLAN: I have no questions.
THE COMMISSIONER: Ms McKenzie?
CROSS-EXAMINATION BY MS MCKENZIE [11.12 AM]
PN341
MS McKENZIE: Thank you, Commissioner.
PN342
Ms McKenna, can I just ask you a couple of questions arising from the matters that Mr Baarini took you to just so I understand your evidence? In your supplementary statement at paragraph 7 you're referring to - you're talking about the photocopy of the care label from your cardigan. Do I take it that your complaint is that the tag says dry clean only, do not wash, but you've subsequently been advised by Qantas that it is washable and you're now required to wash it?‑‑‑Yes.
PN343
That's your complaint? You have in SM5, the final page of SM5, is a page headed Garment Care Instructions. That page does not come from the Cabin Crew Operations Manual itself, does it?‑‑‑No, that s from the cabin crew web site.
PN344
You've downloaded or printed that page off from the QF crew web site?‑‑‑Yes.
*** SUSAN MCKENNA XXN MS MCKENZIE
PN345
And the QF crew web site is the means by which Qantas communicates with crew and updates them about a whole range of procedures and policies and anything else that you need to know?‑‑‑Yes, that's correct.
PN346
There s quite a bit of information on the QF crew web site about your industrial instrument, isn't there?‑‑‑Yes, yes.
PN347
Particularly the new Martin Grant uniform. In this page, which you've included with SM4, it s very clearly explained, isn't it, that in relation to the knitwear, that although the tag reads as dry clean only the garment can be hand washed using wool detergent and it says that, We'll have the garment tag updated as soon as possible. We apologise for any confusion this has caused. So there s no misunderstanding about what the position was with the knitwear, was there?‑‑‑No.
PN348
You weren't under any misunderstanding about whether it could be dry cleaned or not, were you?‑‑‑No, I wasn't under no.
PN349
No?‑‑‑No.
PN350
So is it just that you complain about the fact that you can t have it dry cleaned? Is that the purpose of your evidence?‑‑‑Yes, but it also is dry cleanable. It s just that we are required to wash it.
PN351
Yes, it s washable and you're able to wash it and Qantas only dry cleans those items of uniform that are dry clean only, don t they?‑‑‑Yes.
PN352
It s always been the case that items of uniform that are washable are required to be washed by the cabin crew. That's always been the case, hasn't it?‑‑‑Yes, but I'm just saying my cardigan that I have, which was initial issue, has dry clean only on the label.
PN353
Yes, but it s been explained ‑ ‑ ‑?‑‑‑It s still current.
PN354
What the position is in relation to that?‑‑‑Yes.
PN355
It s the case, isn't it, that in previous uniforms Qantas didn't provide the knitwear? You had to buy your own knitwear if you wanted to wear a cardigan?‑‑‑No. The initial uniform that I went into did have a Qantas issue ‑ ‑ ‑
*** SUSAN MCKENNA XXN MS MCKENZIE
PN356
Was that always the case throughout your 22 years that knitwear came as part of the uniform?‑‑‑No, the second uniform I had, we were able to purchase, but Qantas reimbursed us.
PN357
And dry cleaned them?‑‑‑I can t actually recall, no.
PN358
You were asked some questions in relation to what the position was if your uniform got soiled while you were flying. Can I ask you to look at SM5, which you've attached to your statement, being the current or the latest version of the Cabin Crew Operations Manual?‑‑‑Yes.
PN359
That Cabin Crew Operations Manual is a manual that sets out all of the procedures and practical things or information that cabin crew need to know as part of their job, isn't it?‑‑‑Yes.
PN360
It s updated every six months and it s available to you online?‑‑‑Yes.
PN361
And you're required and expected to be familiar with it?‑‑‑Yes.
PN362
And you're required to comply with any requirements in the manual, aren t you?‑‑‑Yes.
PN363
Although the date at the bottom of SM5 says 27 April 2012, you understand, don t you, that the manual in its entirety is updated every six months and that date might simply refer to the fact that that page has not had to be amended or changed since that date?‑‑‑Yes.
PN364
But the manual in its entirety is updated every six months?‑‑‑Yes, yes.
PN365
And you'll see at the bottom of the first page of SM5 under 4.10.4.3:
PN366
It is the responsibility of crew member to press the provided uniform. Crew members should ensure that they take sufficient uniform items for their trip to avoid the need for dry cleaning up line.
PN367
So it s a requirement, isn't it, that if you're going away that you take another uniform to wear on the return trip - isn't it?‑‑‑Yes, it is.
*** SUSAN MCKENNA XXN MS MCKENZIE
PN368
It s not something you can just to do or not do. Qantas expects you to take a replacement uniform?‑‑‑Yes, but I have had instances where I ve had items leak into my bag, so in circumstances like that where you would need to use the hotel dry cleaning facilities.
PN369
But if that was to happen, that would be a bit of an exceptional situation, wouldn't it?‑‑‑Yes. But then you also have situations I just returned from Los Angeles the other day and my suitcase didn't arrive with me. So there s always a possibility that the item that you packed may not be wearable because something has happened in your bag or your suitcase doesn't arrive.
PN370
You're not suggesting, though, are you, that if your uniform doesn't arrive and as a result you have to launder the uniform that you wore over that that cost wouldn't be a cost met by Qantas? You're not suggesting that, are you?‑‑‑No. I'm just saying that there s always an anomaly that sometimes needs to be factored ‑ ‑ ‑
PN371
Yes, but if that happened you would put a claim in and Qantas would meet that cost. You would not be expected to dry clean or launder the one uniform that you were left with at your own expense, would you?‑‑‑Well, my understanding is that that s what the standard daily travelling allowance is for.
PN372
But it wouldn't cover or would not be expected to cover a circumstance where your bag didn't turn up in LA, would it?‑‑‑When your bag doesn't turn up in LA, you are paid a $50 cash payment, but that is essentially to put you into clothes so that you can leave your room.
PN373
Has it ever happened to you that you've been left in a slip port with only the uniform that you wore up with?‑‑‑Yes.
PN374
And how ‑ ‑ ‑?‑‑‑It doesn't happen very often, but it does happen.
PN375
Have you had to clean that uniform?‑‑‑Yes.
PN376
In the slip port?‑‑‑Yes.
PN377
And have you met that cost?‑‑‑Not necessarily the entire uniform, but parts of it. Yes.
PN378
Have you had to put it into dry cleaning?‑‑‑Yes.
*** SUSAN MCKENNA XXN MS MCKENZIE
PN379
You met that cost yourself?‑‑‑Yes.
PN380
Did you ask for that to be reimbursed?‑‑‑No, because that s my understanding that that s what the allowance is for.
PN381
So you don't know then, do you, whether or not that would have been an expense that Qantas would have met?‑‑‑No, I don t.
PN382
But you do agree, don t you, that crew members are expected to take with them sufficient uniform items to wear on the return trip to cover the situation where a uniform might get dirty going up?‑‑‑Yes. And I think it s standard practice that crew do that.
PN383
That's intended to avoid, to the extent possible, the need for uniforms to be dry cleaned or cleaned up line?‑‑‑Yes.
PN384
And it s a sensible policy, isn't it?‑‑‑It s hygienic.
PN385
Can I just take you to your first statement, Ms McKenna? You say in paragraph 6 that you currently wash five of the nine uniform items that you wear each trip. Can you just say what are the five items that you wash?‑‑‑In Melbourne, predominantly our trips are two sectors over two destinations we re travelling to and coming back. So I take two white shirts, so one to go over, one to come back, two scarves, again, one to go over and one to come back, and also my uniform issue cardigan which is worn for probably about half of each flight.
PN386
The nine uniform items, what are the remaining four items?‑‑‑Trousers, the waistcoat and also the jacket.
PN387
You only take one of those with you?‑‑‑I take two trousers, one waistcoat and one jacket.
PN388
Your typical trip is to LA and back, isn't it? That's the trip that you ‑ ‑ ‑?‑‑‑Well, Hong Kong, Singapore and LA and back.
PN389
Yes, but your personal preference in bidding is typically to do the LA and back, isn't it?‑‑‑If I can, yes.
*** SUSAN MCKENNA XXN MS MCKENZIE
PN390
Yes. So that s what you bid for. So, generally speaking, in your eight-week blocks, you would generally do a number of trips to LA and back, wouldn't you?‑‑‑Yes.
PN391
And less frequently would you do the Hong Kong or Singapore trips?‑‑‑Well, this roster I had four Los Angeles, two Singapore and one Hong Kong.
PN392
Yes?‑‑‑So I had seven trips in eight weeks.
PN393
And you go to LA and I think you said it s about a 15-hour tour of duty and then you're there for at least 54 hours, I think you said, or up to 72 hours it can be. So two or three nights and then you come back?‑‑‑Yes.
PN394
And you wear one shirt going up and one shirt coming back?‑‑‑Yes.
PN395
And you wear one waistcoat and one jacket and you take ‑ ‑ ‑?‑‑‑Two pairs of trousers.
PN396
Two pairs of trousers?‑‑‑Yes.
PN397
When you come back, you can then put the jacket, the waistcoat, the trousers in for dry cleaning, can t you?‑‑‑Yes.
PN398
And in relation to scarves, you say you wash those, but I think you said later in your statement that you had requested and been supplied with a silk scarf instead of the original the other poly cotton scarf?‑‑‑Yes.
PN399
The silk scarves are dry clean only, aren t they?‑‑‑Yes.
PN400
So you're entitled to have your silk scarf dry cleaned?‑‑‑You are, but however, my dry cleaner has not actually been advised of that and I had to push that issue quite vigorously.
PN401
You mention that in paragraph 7 of your second statement. But you don t suggest, do you, that the dry cleaner didn't accept the silk scarf and didn't dry clean it?‑‑‑The dry clean wasn't going to accept it.
PN402
No, but you did and it was dry cleaned?‑‑‑Yes.
*** SUSAN MCKENNA XXN MS MCKENZIE
PN403
You just had to enter it under neck tie. That was your point, wasn't it?‑‑‑Yes.
PN404
So the silk scarf is dry cleaned?‑‑‑Yes.
PN405
So the only items you have to wash are your two white shirts and your cardigan, if you choose to wear it?‑‑‑I sometimes wear the silk scarf and I sometimes wear the polyester one. It s got a lot to do the polyester one the silk one you could have you have to request that as an additional uniform item and it s mainly to do with thermal comfort and sometimes we get on board the aircraft, I put on I sell duty free. I'm down the back of the aircraft and you can get on and it can be more than 35 degrees in the back of the aircraft. So that s when I tend to wear in the summer, Australian summer I tend to wear the silk staff and on other flights I wear the polyester one, which sits a lot better.
PN406
But you've requested the silk scarf. You've been given the silk scarf. The silk scarf is dry clean only?‑‑‑Yes.
PN407
So if you chose to, you could wear the silk scarf only and have them dry cleaned at the end of every trip?‑‑‑Yes.
PN408
But if you choose to sometimes wear the poly cotton scarf, that is a washable item which you are required to wash. Is that right?‑‑‑Yes.
PN409
The cardigan is not an item of uniform that Qantas requires you to wear every trip, does it?‑‑‑No.
PN410
You can choose to wear the cardigan ‑ ‑ ‑?‑‑‑You can choose to wear that.
PN411
If you feel cold and Qantas issues you with a cardigan, but it s not something it s not a uniform that you are required to wear?‑‑‑Well, it s a uniform we re required to wear if we want to wear a warm item during the middle of the flight. We can t wear anything else.
PN412
No. But Qantas doesn't require you to have the cardigan on at all times?‑‑‑No.
*** SUSAN MCKENNA XXN MS MCKENZIE
PN413
So when the enterprise agreement, which I think you've referred to when the enterprise agreement in clause 17 of the uniform provision says that the employees must wear the uniform at all times whilst on duty, that s not referring to the cardigan, is it?‑‑‑I think it is because if you want to wear a cardigan, you have to wear that issue item.
PN414
Yes, but Qantas is not requiring you to wear the cardigan at all times whilst on duty, is it?‑‑‑No. You're only allowed to wear it at certain times of the flight.
PN415
It s an optional piece of clothing which Qantas has provided as part of the overall uniform ensemble for crew if they choose to if they feel the cold and want to wear knitwear, something extra underneath their jacket. They can wear the cardigan?‑‑‑Most crew wear the cardigan during the flight.
PN416
Yes, but they're not required. They're not required to wear their cardigan?‑‑‑We re required to wear it because we re not allowed to wear a non-issue item.
PN417
Ms McKenna, Qantas does not require you to wear your cardigan at all times whilst you are on duty, does it?‑‑‑No, I'm not saying they have to wear it all the time.
PN418
No, thank you. You say in relation to your washing that when you come back from your trip, I think you say that you have to do three separate loads of washing every trip. I think that s at paragraph 20. Do I understand that to be that one load comprises two white shirts?‑‑‑Yes.
PN419
One load comprises possibly one or two poly cotton scarves, but only if you've chosen to wear the poly cotton ones and not the silk ones?‑‑‑Yes.
PN420
The other load comprises one cardigan?‑‑‑Yes, on a wool wash. Yes.
PN421
In relation to the two white shirts, you're also required to iron those?‑‑‑Yes.
PN422
Is your evidence that that is an unreasonable requirement or is your evidence that it s simply not what the enterprise agreement entitles you to?‑‑‑I believe it s not what the enterprise bargaining agreement entitles us to.
PN423
You don t suggest, do you, that that in itself is an unreasonable requirement of you to wash your white shirts?‑‑‑I think that if the the uniform items are Qantas issue and Qantas property and it also says in the enterprise bargaining agreement that I am required to maintain them.
*** SUSAN MCKENNA XXN MS MCKENZIE
PN424
All right?‑‑‑So I believe it s a requirement on me to wash them so that I'm presentable for my next flight.
PN425
Yes, but are you saying that that s unreasonable?‑‑‑I'm saying it s not in agreement with what the enterprise bargaining agreement says.
PN426
Is it your evidence then that Qantas should also wash your pantyhose?‑‑‑I don t well, they're a Qantas issue.
PN427
Yes?‑‑‑But not everybody wears the Qantas issued pantyhose.
PN428
But you're entitled to get six pairs of pantyhose from Qantas. Is that every year or every month? I can't remember?‑‑‑No.
PN429
THE COMMISSIONER: It s every few weeks, isn't it, every few months?
PN430
MS McKENZIE: So you can get six pairs of pantyhose so they're Qantas provided, Qantas issued. Are you saying Qantas should wash those for you, too?‑‑‑I would think for hygiene that wouldn't be a good idea.
PN431
But you'd agree that they're part of the uniform, wouldn't you?‑‑‑Yes, they are, but not everybody actually has to pick those up.
PN432
No, but everybody has to wear pantyhose, don t they?‑‑‑No, you don t have to.
PN433
You don t?‑‑‑You can choose not to.
PN434
All right?‑‑‑You can get knee highs instead, if you want.
PN435
THE COMMISSIONER: I choose not to.
PN436
MS McKENZIE: I don't think you'd be issued with six pairs, Commissioner.
PN437
You talk also about the cost of the Napisan, but I think you acknowledge in your second statement that you are able to claim as a tax deduction the costs that you incur in dry clean or cleaning your uniforms?‑‑‑Yes.
*** SUSAN MCKENNA XXN MS MCKENZIE
PN438
You say at paragraph 14 of your second statement that your accountant claims on your behalf $150 per annum towards dry cleaning and laundering. You understand, don t you, that that is the maximum that you're able to claim without any receipts or justification?‑‑‑Yes.
PN439
But do you also understand that if you have substantiation of any additional expense by way of receipts or documentation that you can claim the full amount of the actual cost to you of dry cleaning or cleaning your uniforms?‑‑‑Yes, yes.
PN440
So if you kept your receipts for the Napisan and if the cost of the Napisan or the cost of the electricity or any other expenses that you would say that you incur as a result of washing your uniforms, if that amount exceeded $150, you would be entitled to claim the actual amount provided you had that documentation?‑‑‑And my understanding is I would get my taxed portion back only.
PN441
I'm sorry?‑‑‑I would only get the taxed portion back, not the entire amount back.
PN442
It would be a deduction. You would be entitled to have the deduction the full value of the deduction made to your taxable income. You understand that?‑‑‑Yes.
PN443
But is it your practice to only arrange for your accountant to claim the maximum amount that you can claim without substantiation of any additional expense?‑‑‑That's ‑ ‑ ‑
PN444
That's your practice?‑‑‑Yes.
PN445
Do you say that the cost to you of the Napisan would exceed $150 per year?‑‑‑I think the Napisan, the electricity, the water, the soap powder, the ironing I use demineralised water in my iron. I think all of that would be more than $150.
PN446
That's only in respect of the uniforms. You do no other washing?‑‑‑I do, but I wash my uniform items separately.
PN447
I see?‑‑‑As I ve stated, I don t wear pinks on my days off. I rarely where white and I have to do the cardigan in a wool wash.
PN448
Is it your evidence that you put the two one or two scarves as a separate load in the washing machine?‑‑‑Yes, because I can t mix them with other colours. It s a hand wash that only goes for like 40 minutes.
*** SUSAN MCKENNA XXN MS MCKENZIE
PN449
You wouldn't just hand wash them yourself in a basin?‑‑‑No, because my laundry is outside and I either get eaten alive by mosquitoes or I freeze.
PN450
You don't have any basins? I think you talk about in paragraph 12, Ms McKenna, the fact that many years ago you were issued with a dry cleaning card. It s the case, isn't it, that when you commenced employment with Qantas in around, I think, 1992, is it you began ‑ ‑ ‑?‑‑‑Yes.
PN451
That you would have been given the dry cleaning card at the commencement of your employment?‑‑‑I think so. I really don t remember that long ago.
PN452
It s been the practice then, hasn't it, throughout your employment with Qantas that you have a dry cleaning card that you take with the dry clean only items of your uniform to your dry cleaner? You drop them off. The cost is charged back directly to Qantas and then you pick up your dry cleaning?‑‑‑I haven't actually used my dry cleaning card, I think, for about 15 years.
PN453
So you just drop the items off?‑‑‑Yes.
PN454
And the cost is met by Qantas directly?‑‑‑Yes.
PN455
You don t pay for it and then get reimbursed?‑‑‑No.
PN456
It s charged directly?‑‑‑I could if I used a non-appointed dry cleaner.
PN457
Yes, but if you use the dry cleaner appointed by Qantas then ‑ ‑ ‑?‑‑‑Yes, I'm just lucky that I have one close to my home.
PN458
Yes. The cost is charged directly to Qantas. That's been the practice throughout your employment?‑‑‑Yes.
PN459
Has it been the case that throughout your employment you have had to wear a shirt, a cotton shirt, as some part of your uniform?‑‑‑Yes.
PN460
Those shirts have never been dry cleaned by the dry cleaner that you take the other items to, has it?‑‑‑No.
*** SUSAN MCKENNA XXN MS MCKENZIE
PN461
So you've always washed your shirts?‑‑‑Yes.
PN462
You say in paragraph 12 that:
PN463
The dry cleaner will not accept some uniform items, which is upsetting and surprising.
PN464
Which items are you referring to there?‑‑‑All the items that I clean, the cardigans, the shirts and the polyester scarf.
PN465
Why is that surprising to you that they won t accept those items?‑‑‑Because to me, the EBA clause is very clear that Qantas must launder uniform items.
PN466
You know what the manual says, don t you?‑‑‑I do, but my understanding is that the EBA overrides Qantas policy.
PN467
And how long have you had that understanding?‑‑‑For I think for most of my flying days. It s been debated, if you look through the history, that shirts and uniform items seem to dip in and out of the EBA and so I just know it s something that I ve done forever and it does take a significant amount of time on my days off.
PN468
But shirts have never been? Shirts have never been washed or dry cleaned by Qantas?‑‑‑Not as far as I'm aware.
PN469
No. So you would not be at all surprised if the dry cleaner won t accept shirts, would you?‑‑‑No.
PN470
You would not be at all surprised that they won t accept any other washable items, such as the poly cotton scarves?‑‑‑It surprises me in a way that the tags actually say dry cleanable or washable and yet it s the washable preference that we have to go through.
PN471
But you know that the dry cleaners will be doing what Qantas has asked them to do?‑‑‑Yes. Yes, I understand that.
*** SUSAN MCKENNA XXN MS MCKENZIE
PN472
And you understand from the cabin crew manual what Qantas position is in relation to the dry cleaning and laundering of uniforms, don t you?‑‑‑Yes. Which is why I don t contravene that and try to submit items that aren t listed under the policy.
PN473
You were asked some questions about the overseas daily travel allowance and the ODTA and the ODTA is the one that s paid daily and the SDTA, although it s called a daily travel allowance, is in fact paid weekly and I think you agreed with Mr Baarini, that s an allowance, the weekly amount of which is paid to you as part of your normal salary. In relation to the overseas daily travel allowance, which is a daily rate, what is your understanding of what that allowance compensates you for?‑‑‑Basically for costs while we are overseas in the slip port.
PN474
What sort of costs would they be that you would incur?‑‑‑To be honest with you, I can t specify.
PN475
It s the case, isn't it, that you get a separate meal allowance when you're in an overseas slip port?‑‑‑Yes.
PN476
It s the case, isn't it, that Qantas arranges for transportation from the airport and to the airport ‑ ‑ ‑?‑‑‑Yes.
PN477
‑ ‑ ‑ when you're on slip port? Qantas provides, of course, the hotel costs for you?‑‑‑Yes.
PN478
Is it the case that the overseas daily travel allowance is entirely for personal expenditure that you choose to incur?‑‑‑I believe so, yes.
PN479
Just finally, Ms McKenna, you say in paragraph 23 that the current uniform laundering wording is present in EBA 4, EBA 7, EBA 8 and EBA 9 and it disappeared completely from EBA 5 and EBA 6?‑‑‑Sorry, what clause was this?
PN480
Paragraph 23. This is of your second statement?‑‑‑Yes.
PN481
Have you had cause in preparing this statement to look at those agreements, have you?‑‑‑Yes, I ve gone through them with a fine tooth comb.
PN482
You'll recall, won t you, that EBA 5 and EBA 6 simply refer to the previous agreements?‑‑‑I can t clarify that.
*** SUSAN MCKENNA XXN MS MCKENZIE
PN483
You're not suggesting there, are you, that the provision itself ceased to apply during EBA 4 or EBA 5, are you?‑‑‑The actual clauses completely disappear out of those two EBAs.
PN484
Yes, but you're not suggesting that the provision itself did not continue to apply?‑‑‑I'm just making a note saying ‑ ‑ ‑
PN485
You don't know?‑‑‑ ‑ ‑ ‑ if the wording is present or not present.
PN486
You prepared this yourself, did you?‑‑‑Yes, I did.
PN487
Just finally, in paragraph 24, you say that the additional personal costs and time incurred by you in laundering uniform items is unacceptable. Why is that?‑‑‑It does take a considerable amount of time on my of my leave days after a trip where I'm supposed to be resting and recuperating for my following shift.
PN488
Are you aware or do you have any knowledge of what the arrangements are in relation to laundering of uniforms for other flight attendants?‑‑‑No.
PN489
Do you know what the position is at Virgin?‑‑‑No.
PN490
Do you know what the position is with Qantas domestic flight attendants?‑‑‑I believe domestic don t actually have dry cleaning available to them.
PN491
No, no. So you don t have any direct knowledge of what the position is with other flight attendants, even employed by Qantas or other airlines?‑‑‑No.
PN492
I ve got no further questions.
PN493
THE COMMISSIONER: Mr Nolan, do you have any ‑ ‑ ‑
PN494
MR NOLAN: No questioning.
THE COMMISSIONER: Mr Baarini?
RE-EXAMINATION BY MR BAARINI [11.40 AM]
*** SUSAN MCKENNA RXN MR BAARINI
PN496
MR BAARINI: Thank you.
PN497
Ms McKenna, are you required to return pantyhose to the company after use?‑‑‑No.
PN498
In relation to other items that are laundered, do those items remain the property of the company or required to be returned?‑‑‑Yes.
PN499
In relation to my friend s question about your 22 years with the company and your understanding about the policy you made reference to not wanting to contravene company policy. Can you just expand on that for the purpose of your answer as to what you meant by that?‑‑‑Well, I just don t want to basically stick my head above the sand and get in trouble for doing something that is not an accepted policy at Qantas.
PN500
I take it that you wish to comply with company policies and procedures from the date of commencing work for the company?‑‑‑Yes.
PN501
That's a position that you've held with the company up until today ‑ ‑ ‑?‑‑‑Yes.
PN502
And moving forward?‑‑‑Yes.
PN503
And you'll continue to do that?‑‑‑Yes.
PN504
Wanting to comply with company policies and procedures, what s the ramifications for being in breach of any company policies and procedures or manual?‑‑‑Well, you re potentially looking at clause 11 if it s a substantial matter, which is disciplinary action.
PN505
I take it that the mere fact that you complied with what you laundered with the supply doesn't necessarily equate to you being accepted of the company s practice in relation to which items are to be laundered?‑‑‑Just because I follow the rules doesn't mean I agree with them.
PN506
Have you expressed that disagreement in the past?‑‑‑There s what is called galley gossip, which is where crew all talk to each other on flights, et cetera, and it s a standard, I suppose, gripe that we have to launder our own uniforms, but I don t really know of many people who have pursued it with the company, especially in these days of cost cutting.
*** SUSAN MCKENNA RXN MR BAARINI
PN507
You were also asked a question about the overseas travel allowance. I think you were asked a question as to whether you felt that was for personal expenditure if you choose to incur it. Do you remember that?‑‑‑Yes.
PN508
Can you just explain to the Commission what you understand to be the purposes of that allowance ‑ ‑ ‑
PN509
MS McKENZIE: Well, I object to that. That's isn't a question I asked.
PN510
MR BAARINI: Let me put it another way. If in fact you've got to use that allowance for laundering your uniform overseas, do you apply that allowance for that purpose?‑‑‑For laundering overseas?
PN511
Whilst you're overseas?‑‑‑Well, yes, I would because I d have to get the money from somewhere.
PN512
If there was no need for it, you would ‑ ‑ ‑?‑‑‑Then it goes towards the other things that I do.
PN513
Yes. No further questions, Commissioner.
PN514
THE COMMISSIONER: Just on that point, though, it would seem to me to be fairly obvious that if your trousers, which are dry cleanable only and which would be dry cleaned back here, you wouldn't bother to do that overseas?‑‑‑No. No, that s what I'm saying, if you had them in your suitcase and your suitcase didn't arrive or something leaked in your bag and your second pair of trousers didn't arrive or had been soiled then you would need to get something dry cleaned.
PN515
All right?‑‑‑It s not a standard it s not something you would normally do, though.
PN516
But in the ordinary course you wouldn't take those items to what we might call a foreign laundry. You'd bring them back because then you could access the Qantas arrangement for those dry cleanable items?‑‑‑Yes.
PN517
We've heard about your particular arrangements and the items of clothing or items of the uniform and how you work, but presumably there s many different variations and permutations of this as there are Qantas flight attendant?‑‑‑Are you talking about the uniform items that you wear?
*** SUSAN MCKENNA RXN MR BAARINI
PN518
Yes?‑‑‑Yes.
PN519
And how you actually deal with this, what you do, but it seems to me that the nub of the issue here is that the way that this has been applied historically has been that laundering has been considered to be dry cleaning?‑‑‑Yes.
PN520
And, of course, we know that laundering is well, dry cleaning is just one form of laundering really. So now if this is expanded, it would then expand into the other items that are dry clean only and most notably the shirts and the shell tops and so forth. I d just like you to give any comment you wish on a potential prognosis for this, if this is correct. Let s assume that the unions are successful and this is correct and therefore Qantas would be obliged to then also provide for the laundering of the other items of the uniform, and I think here we might anticipate that there might be some people that would take that up and others that wouldn't and so forth and there s probably some now who don t necessarily use all of the there d be people that put more dry cleaning in than others and so forth. In all of that and with all of the various issues that might emerge from that outcome, perhaps this time next year when the agreement is being renegotiated there might be a desire on the part of Qantas to say, This is just too much trouble. We will pay an allowance. No more cards, no more dry cleaning. It s all your responsibility. No further tax deductions because you're receiving an allowance, and if at the end of all of that you're in front of where you are now might be an interesting outcome. Do you offer any comment about that?‑‑‑I would be happy to maintain my uniform 100 per cent if I was compensated for my time and expense.
PN521
If you received a uniform allowance as such?‑‑‑If it adequately covered what I did, yes.
PN522
There are some broad prescriptions around the place about uniform allowances and the fact there are a number of them contained in other enterprise agreements that Qantas have for other parts of its operation, but you don t see that as a potential problem?‑‑‑Personally? No, I don t.
PN523
You'd be content with ‑ ‑ ‑?‑‑‑I would prefer to actually wash my own uniform and know that it s maintained to the standard that I prefer than handing it over to ‑ ‑ ‑
PN524
Including having to dry clean at your own expense those items that require dry cleaning? That wouldn't be a difficulty?‑‑‑No, I don't think so.
*** SUSAN MCKENNA RXN MR BAARINI
PN525
MR BAARINI: I guess if I could follow up a few further questions to that, Commissioner.
PN526
THE COMMISSIONER: It s your witness. I'll ask Ms McKenzie if she has anything arising from my questions.
PN527
MS McKENZIE: No, I don t, Commissioner.
PN528
THE COMMISSIONER: Mr Nolan?
PN529
MR NOLAN: No.
PN530
THE COMMISSIONER: No. Mr Baarini?
PN531
MR BAARINI: For the purposes of the record, that is a personal view not reflective of others and this is the first time that you've heard of this potential proposition. Can you say yes?‑‑‑Yes.
PN532
I note that you said yes?‑‑‑Sorry.
PN533
Just coming back to the trousers, there are two trousers you said that you take with you and they are washed by the company?‑‑‑Yes. Dry cleaned, yes.
PN534
My friend took you to the provision in the enterprise agreement clause 17 which said that the employee must wear the uniform at all times?‑‑‑Yes.
PN535
Do you remember that? Do you wear both trousers at the same time for the purposes of that clause to be used for the dry cleaning or can you only ever one trouser at a time?‑‑‑I wear one pair of trousers at a time.
PN536
In relation to the choice of what you can wear, whether it s a polyester scarf or a cardigan, can you just explain what choice you actually have to wear that cardigan on duty?‑‑‑If you - you're allowed to basically put the cardigan on as soon as the meal service is finished until the beginning of the following meal service. So it s basically just a garment to provide you with extra warmth while you're doing your duties, but not actually a meal service.
*** SUSAN MCKENNA RXN MR BAARINI
PN537
What right do you have to wear white shirts that are not company white shirts?‑‑‑You don t.
PN538
No further questions, Commissioner.
PN539
THE COMMISSIONER: Thank you.
Thank you for giving your evidence. You are released and discharged. Thank you.
<THE WITNESS WITHDREW [11.51 AM]
PN541
MR BAARINI: No further witnesses from the Transport Workers Union.
PN542
THE COMMISSIONER: That's the evidence for the applicant. Perhaps we might take a short break and then resume with the respondent s witnesses, I think. So we'll take a break and resume in about 15 minutes.
SHORT ADJOURNMENT [11.51 AM]
RESUMED [12.51 PM]
PN543
THE COMMISSIONER: We re on record again. Ms McKenzie?
PN544
MS McKENZIE: Thank you, Commissioner. We've got two witnesses to call, Mr O Connor and Mr Brown. I call Mr O Connor first.
PN545
THE ASSOCIATE: Please state your full name and address?
MR O CONNOR: Nicholas O Connor (address supplied).
<NICHOLAS CHRISTOPHER MATTHEW O'CONNOR, SWORN [12.16 PM]
EXAMINATION-IN-CHIEF BY MS MCKENZIE [12.16 PM]
PN547
MS McKENZIE: Mr O Connor, you've prepared a statement of the evidence that you wish to give in these proceedings?‑‑‑I have.
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XN MS MCKENZIE
PN548
Do you have a copy of that statement with you, together with the attachments?‑‑‑Yes, I do.
PN549
Mr O Connor, there are two corrections that you wish to make to your statement?‑‑‑Yes, there are.
PN550
Yes. In paragraph 1 of your statement on the third line, do you wish to just amend the name of your title which appears to be incorrectly stated as head of Qantas Airlines cabin crew to read head of customer experience Sydney international lounges?‑‑‑No. So what I d like to do is actually change in the opening sentence actually where it says, second line, Head of one service team, to, Head of customer experience Sydney and international lounges.
PN551
I'm sorry?‑‑‑So my title is wrong in the opening sentence.
PN552
I'm sorry. So it s head of ‑ ‑ ‑?‑‑‑It s correct in point 1.
PN553
I'm sorry, you're going to have to do that ‑ ‑ ‑?‑‑‑So the ‑ ‑ ‑
PN554
So what s the change?‑‑‑So the second sentence or the opening where it says, On 15 March.
PN555
I'm sorry. I'm sorry, Mr O Connor, I see, right up at the beginning?‑‑‑Correct. Yes. It says, Head of one service team, currently. It should read, Head of customer experience Sydney international lounges.
PN556
Head of customer experience Sydney. I apologise?‑‑‑And international lounges.
PN557
So if that change could be made to the opening sentence of the statement. Mr O Connor describes his position, Head of customer experience Sydney ?‑‑‑And international lounges.
PN558
Experience and international lounges. So paragraph 1 is correct?‑‑‑Yes.
PN559
Thank you. Apologies, Mr O Connor. And, secondly, at paragraph 26 of your statement, do you wish to make an addition to that?‑‑‑Yes, I do.
PN560
What is the addition you wish to make?‑‑‑So what I d like to add is where it says, Of the employees who are required to wear the Martin Grant uniform, it should say, Only airport staff and international cabin crew are provided with dry cleaning. So it s the addition of the airport staff .
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XN MS MCKENZIE
PN561
Could you just explain to the Commission who are airport staff?‑‑‑So in the context of this it s ASU covered customer facing staff at airports for Qantas.
PN562
All right?‑‑‑So they might be a check in agent or a first host, for example.
PN563
Is the effect of your change, Mr O Connor, that your evidence now is that airport staff of the groups that you just described have the same entitlement in relation to the provision of dry cleaning that applies to international cabin crew?‑‑‑Yes, that s my understanding.
PN564
I ve got no further questions. Could I, therefore, tender Mr O Connor s statement?
PN565
THE COMMISSIONER: The document is tendered. Is there any objection to its admission?
PN566
MR BAARINI: No objection.
PN567
THE COMMISSIONER: No?
PN568
MR NOLAN: Perhaps I could say, and we might make some submissions about relevance, but subject to that ‑ ‑ ‑
THE COMMISSIONER: All right. The document is tendered and admitted and this becomes exhibit 6. Exhibit 6 is described as the statement of Nicholas Christopher Matthew O Connor dated 15 May 2015, exhibit 6.
EXHIBIT #6 STATEMENT OF NICHOLAS CHRISTOPHER MATTHEW O'CONNOR DATED 15/05/2015
PN570
MS McKENZIE: Thank you. I ve got no further questions for Mr O Connor.
PN571
MR NOLAN: Yes, I don t want to cross‑examine him.
PN572
THE COMMISSIONER: Mr Nolan? You don't have any cross‑examination?
PN573
MR NOLAN: No.
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XN MS MCKENZIE
THE COMMISSIONER: Mr Baarini?
CROSS-EXAMINATION BY MR BAARINI [12.19 PM]
PN575
MR BAARINI: Yes, thank you, Commissioner. Maybe I should have been seated in the middle, Mr Nolan.
PN576
Mr O Connor, how many enterprise agreements have you negotiated for the company ‑ ‑ ‑?‑‑‑I ve been involved ‑ ‑ ‑
PN577
In relation to the flight attendants, the subject of this dispute?‑‑‑So I ve been involved in the negotiation of one of those, which is the current EBA, EBA 9.
PN578
I take it that prior to that you did not negotiate any of the previous agreements?‑‑‑That's correct.
PN579
So what is contained in the relevant clauses that are the subject of this dispute, clause 17, and I think 20, part 2, in relation to uniforms are in fact clauses that were negotiated in previous agreements and under your watch for the company in the most recent agreement it was simply retained?‑‑‑Yes.
PN580
So the original purpose in which this clause came to be negotiated is not within your knowledge?‑‑‑That's correct.
PN581
So you are, to an extent, exclusively adopting the company position as soon as you took over as head of customer experience Sydney and international lounges. Is that correct?‑‑‑Well, I ve been with Qantas 10 years. I ve had a number of roles in the international division and I ve always largely applied the clause of the recent EBA now, whether it s been EBA 8 or EBA 9.
PN582
So your understanding of what that clause applies or how it applies is based on not what was negotiated, but what the company position is in relation to that particular clause?‑‑‑Yes.
PN583
So I take it that if your position was different as to what clause 17 should mean that because of your employment with the company that you are bound by the company s position. Is that correct?‑‑‑Sorry, can you ask the question again?
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN584
If your understanding of that particular clause might be different to what the company s position is in relation to that clause 17 and clause 20 of the agreement, that might be your personal position and not the company s position. Is that correct?‑‑‑So do I have a personal interpretation of the clause versus a I guess in the context of the EBA? Is that the question?
PN585
Yes?‑‑‑So I have always operated under those EBAs and that clause has always meant, to the best of my knowledge, it s covered laundering and largely covered or only covered dry cleaning.
PN586
But that would be not because you negotiated it, but that s because of what you understood the company to adopt as being the position in that clause. Is that correct?‑‑‑That's correct.
PN587
Have you got the relevant clause of the EBA that s the subject of dispute before you, Mr O Connor, clause 17?‑‑‑No. I don't have it in front of me. No.
PN588
I'm wondering whether we might be able to hand the witness a copy of that clause?‑‑‑I have a copy in my bag if you want me to thank you.
PN589
If I take you to clause 17 of the enterprise agreement ‑ ‑ ‑
PN590
MS McKENZIE: It s part 1, I think.
PN591
MR BAARINI: Part 1. Sorry. Thank you?‑‑‑Page 30?
PN592
On page 30. Thank you. Do you accept that the words that are used in that clause does not contain any reference to dry cleanable or dry clean only?‑‑‑Yes.
PN593
And the same, I guess, Commissioner, for the purpose of time, ask about clause 20 of part 2, that the same would apply in relation to that particular clause as well?‑‑‑I don't recall it mentioning dry cleaning specifically.
PN594
MS McKENZIE: We'll concede that item.
PN595
MR BAARINI: Yes.
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN596
So any reference that I ask in relation to clause 17, I take it will be the same for clause 20 of part 2, although I'm happy to take the witness to clause 20 of part 2. Have you got a copy of clause 20 of part 2?‑‑‑It will be in here. Just give me a minute to ‑ ‑ ‑
PN597
Which is page 103 of the enterprise agreement, Mr O Connor?‑‑‑Yes, I have it.
PN598
Do you accept that clause 20, which is headed Uniforms in part 2 also makes no reference to the words dry cleanable or dry clean only ?‑‑‑Yes, I accept that.
PN599
It also makes no reference as to what uniform items the particular provision relates to. Is that correct?‑‑‑So it doesn't specify the uniform items that are to be worn? No.
PN600
Yes. So do you also accept that there is an obligation on the company by virtue of that provision, clause 17 and clause 20, on the company to launder uniforms?‑‑‑Yes.
PN601
The extent and nature of that obligation, you say, arises not by the enterprise agreement but by virtue of something outside the enterprise agreement?
PN602
MS McKENZIE: Sorry, I object to that question. I think it s the nature of that obligation. Perhaps that could be clarified what the obligation is the question relates to.
PN603
MR BAARINI: I think the witness has said yes, that there is an obligation on the company to launder uniforms at its expense. Did you say that, Mr O Connor?‑‑‑I would agree with that in the context of the EBA, for us that s dry cleaning.
PN604
Sorry?‑‑‑So in the context of our EBA and the way that we apply that is we provide dry cleaning at the company s expense.
PN605
Yes, I'll get to that, but I guess coming back to the first question I ve asked, do you accept that by virtue of the words that are contained in clause 17 and clause 20 of the agreement ‑ ‑ ‑?‑‑‑Yes.
PN606
That there is an obligation on the company to launder uniforms at the company s expense?‑‑‑Yes.
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN607
And any position outside of that particular answer is not found in the enterprise agreement, but by something outside of the enterprise agreement. Is that correct?‑‑‑Could I just ask you to ask that question again, Mr Baarini?
PN608
Yes. So the company s position in relation to its obligations and the way that it s conducted itself over the many years is found either through longstanding practice of the company. Could you just answer that?‑‑‑Sorry, yes.
PN609
Or through policies and procedures?‑‑‑Correct.
PN610
Or through manuals?‑‑‑Yes.
PN611
But not by the agreement itself?
PN612
MS McKENZIE: I object to that. I object to that question. The whole purpose of these proceedings is what does the agreement mean and that s a matter for the Commission to determine. What s being put to Mr O Connor assumes or implies that the agreement means something different to what the company does and that s the whole that is the nub of the dispute between us because it is no part of the company s case that it is doing anything other than comply with the agreement.
PN613
THE COMMISSIONER: Maybe it s the framing of the question. It might be, Mr Baarini, that you might approach this slightly differently about how this witness sees the operation of, for instance, some of the procedure documentation that s been attached to his application.
PN614
MR BAARINI: I was going to go down there.
PN615
THE COMMISSIONER: Yes. That might be a better way of approaching it, I think.
PN616
MR BAARINI: Yes. I was going to go down that path in due course and I will after this question, if I might, Commissioner.
PN617
Your power as the head of customer experience Sydney and international lounges, in relation to which items are to be sent to the dry cleaners and which items are to be washed by the cabin crew is derived from the Cabin Crew Operations Manual, Mr O Connor?‑‑‑Yes.
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN618
And from the Qantas uniform procedure?‑‑‑Yes.
PN619
And the Style On Q?‑‑‑Correct.
PN620
Those procedures determine what items are to be laundered from time to time?‑‑‑Those specifics outline what is dry cleanable, what is washable.
PN621
Yes?‑‑‑Yes.
PN622
Do you know how long these procedures have been about?‑‑‑Sorry, in determining what gets ‑ ‑ ‑
PN623
Yes?‑‑‑So to the best of my knowledge and as far back as we've been able to go, we've got documentation back to, I think, 1996 or thereabouts and CCOM references that provide guidance around dry cleaning, the application of dry cleaning.
PN624
Are you now familiar with those going back to 1996, given your inquiries for the purposes of this hearing?‑‑‑Yes.
PN625
Do you accept that the Cabin Crew Operations Manual, if I could take you to that which is, I think, NOC1 of your statement?‑‑‑Sorry, can I just say NOC2? Is that correct?
PN626
Sorry, NOC2?‑‑‑Yes.
PN627
It s the one that s dated 10 December 2010?‑‑‑Yes.
PN628
It s also, I think, dated sorry, number 23?‑‑‑23, yes, I have that.
PN629
If I could you to 4.10.2.1 dry clean only items?‑‑‑Yes.
PN630
It provides:
PN631
The below list of garments are garments that are to be dry cleaned at Qantas expense.
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN632
?‑‑‑Yes.
PN633
The purpose of that manual was to provide a framework for the employer and the employees to determine which garments are to be dry cleaned at Qantas expense. Is that correct?‑‑‑That's to clarify what items should be dry cleaned at Qantas expense? Yes.
PN634
Not just clarify. I put it to you that it was to determine which items are to be laundered at the company s expense?‑‑‑I'm not sure how we get to determine I guess what I'm saying is I think it articulates clearly what is dry cleanable and how dry cleaning is treated.
PN635
In the absence of there being anything clear in the enterprise agreement?‑‑‑Yes.
PN636
In the absence of any other document, this manual determines which items are to be dry cleaned. Is that right?‑‑‑Yes.
PN637
So it doesn't clarify determines which items are dry cleaned . Is that correct?‑‑‑Yes.
PN638
It doesn't actually use the word launder on that page at all, does it, Mr O Connor?‑‑‑Use the word launder ? It does use the word laundered but not launder .
PN639
Yes. So the words that are used:
PN640
The below list of garments are garments that are to be dry cleaned at Qantas expense.
PN641
It uses the word dry clean there. It doesn't use launder or laundered at Qantas expense. Is that correct?‑‑‑That's correct.
PN642
Do you accept that there is a difference between laundering and dry cleaning?‑‑‑In the context of our EBA, I think that dry cleaning covers laundering of uniforms.
PN643
I put it to you is dry cleaning a sub-set of laundering or is laundering a sub-set of dry cleaning? Which one of the two encompasses the other?‑‑‑So can give you me the two options again?
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN644
You accept if we go back a bit ‑ ‑ ‑?‑‑‑Yes.
PN645
You accept that on that manual page it talks about dry clean at Qantas expense. It doesn't use the word laundered at the company s expense ?‑‑‑That's correct.
PN646
Yes?‑‑‑That's right.
PN647
And, therefore, do you accept that those words are not interchangeable, that they are different?‑‑‑Do I accept they're interchangeable or different? In the way that I would read this, I would suggest that they sound like they're - I think they're kind of largely different.
PN648
They are different?‑‑‑Yes.
PN649
And therefore clause 17 of explain to me what the difference is explain to the Commission what the difference is?‑‑‑So I guess in the context of this clause here of 4.10.2, one of the dry clean only items, it talks about dry cleaning as a way of obviously cleaning clothing and the second part says that the remaining element should be laundered in accordance with the care instructions on the label, so it talks about laundry as being different in this context.
PN650
Yes. So you accept that the clause 17 and clause 20 of the enterprise agreement s use of the words laundered as opposed to dry clean ?‑‑‑Yes.
PN651
The only reference to laundering, which is consistent with the words used in clause 17 and clause 20 of the enterprise agreement is what follows in the manual and it says:
PN652
All garments not represented below should be laundered.
PN653
It doesn't say should be dry cleaned does it?
PN654
MS McKENZIE: Can I just object to the question? The question said that it s consistent with. They are two different documents. One is the manual and one is the agreement. I think it needs to be clearly put to Mr O Connor which one Mr Baarini is referring to because his question contained an assumption that the word means the same in both documents and, again, that is the nub of the current dispute.
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN655
MR BAARINI: I think the witness has conceded that there is a difference between laundering and dry cleaning, Commissioner.
PN656
MS McKENZIE: In the context of this document. That was the question he was asked.
PN657
THE COMMISSIONER: You're entitled to question him about that. I think the point being taken is that it doesn't necessarily transpire that you can put this witness evidence to apply back to the EBA because he says that they're two different things in another document. That's the point that s being taken.
PN658
MR BAARINI: Yes, and I will follow that through.
PN659
THE COMMISSIONER: Yes.
PN660
MR BAARINI: I'm just building, as it were, Commissioner. My friend is obviously keen to put some walls up for me to jump, so I'm trying to jump at the same time; build and jump.
PN661
MS McKENZIE: You're overestimating me.
PN662
MR BAARINI: If Ms McKenzie could give me a bit of time, I'm sure I'll be able to overcome her objections in due course.
PN663
If I can go back to the manual, do you see that it says:
PN664
All garments not represented below should be laundered in accordance with the care instruction label within the garment at the staff member s expense.
PN665
?‑‑‑Yes.
PN666
Do you accept that the word laundered there is different to the words dry clean in the sentence above it?‑‑‑Yes.
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN667
Do you also accept that the word laundered in that clause in the manual is, and does mean, the word laundered in clause 17 and 20 of the enterprise agreement?‑‑‑Sorry, can I just confirm are you asking if the word laundered there references the has the same meaning as it does in the enterprise agreement? Is that the question?
PN668
That's correct?‑‑‑No. I would say that for the purposes of the EBA, we have always treated laundering items as dry cleaning items and in this context I think what we re saying is other elements are up to the individual to maintain.
PN669
But you do differentiate between dry cleaning and laundering in the manual. Is that correct?‑‑‑Yes.
PN670
But you don t make the same differentiation in clause 17 and clause 20. Is that correct?‑‑‑That's correct.
PN671
Do you also accept in relation to that particular sentence that that is the first time since day dot that the company has introduced this notion of garments having to be laundered at the staff member s expense? So if I trace you back to the earlier manuals, do you accept that the earlier manuals, going as far back as 1996, makes no reference to the garments having to be laundered at the staff member s expense?‑‑‑Yes.
PN672
So do you accept that in 2010 that the manual created or shifted an impost from the company to the employee in relation to laundering its garments?‑‑‑No.
PN673
Sorry?‑‑‑No.
PN674
Do you accept that in the absence of that clause in previous manuals there was no express direction to the employee to maintain or launder their garments at their own expense the company garments at their expense?‑‑‑So it doesn't reference it in previous CCOM versions.
PN675
Yes. And so you accept that this is the first time it s appeared expressly in the manual?‑‑‑Yes.
PN676
Do you also accept that the how many uniform changes has there been over the last 20 years, if it s within your knowledge?‑‑‑It s not. I'm aware of I ve been at Qantas for two of those changes. So I'm not sure how many there s been over 20 years.
PN677
Do you accept that with changes there are going to be changes to items that might be laundered or dry cleaned?‑‑‑Yes.
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN678
That reflection is made in the Cabin Crew Operations Manual from time to time. Is that correct?‑‑‑From time to time. Yes.
PN679
Do you accept that that manual, whilst accessible to employees, is really to be followed by the employees?‑‑‑Yes.
PN680
There are some disciplinary outcomes that might follow for people breaching the manual or the policy. Is that correct?‑‑‑That's possible.
PN681
Do you accept that one of the things that Qantas has looked at in the past is to pay a flat allowance as opposed to what gets laundered so as to eliminate issues around which items are to be laundered and which are not?‑‑‑I think there might be other business units that pay allowances, I think domestically, for example, the EBA talks about an allowance for uniform, amongst other things.
PN682
Do you also accept that Qantas received some advice well, let me put it to you this way: do you accept that there is ultimately a cost incurred by employees for the laundering of uniforms?‑‑‑Yes.
PN683
Do you accept that the choices to which uniforms are to be laundered is not determined by them, but by the company?‑‑‑Well, the elements that are, you know, I guess changeable by the employee, but there are some elements which are mandatory which do need to be washed. So there s a degree of flexibility, but there are elements probably in all the uniform components that would require washing.
PN684
But ultimately if an employee like Ms Susan McKenna, who gave evidence today ‑ ‑ ‑?‑‑‑Yes.
PN685
She s unable to take some of her items to Qantas s preferred supplier and her shirt were to be rejected or her scarf, that that is ultimately not her decision. Is that correct?‑‑‑Well, that s correct. Yes.
PN686
And it s not the dry cleaner s position to reject it. Is that right? They're working under instructions from Qantas?‑‑‑No, correct.
PN687
So ultimately the decision as to which items get laundered are determined by the company. Is that correct?‑‑‑Yes.
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN688
That determination of which items get laundered are not negotiated in the enterprise agreement, are they?‑‑‑No, they're not.
PN689
Do you accept that uniforms are company uniforms, those that are supplied to employees is company property?‑‑‑Yes.
PN690
The company puts an obligation on the employees to maintain those uniforms?‑‑‑That's correct.
PN691
And to return them if made redundant or terminated or resignation?‑‑‑Yes.
PN692
Is that correct?‑‑‑That's correct.
PN693
Save for banning notice. Is that correct?‑‑‑I believe so.
PN694
So the obligation from the employee well, the obligation on the company to launder uniforms is not so much that the employee must wear the uniforms at all times, it s that they are company owned property. Is that correct?‑‑‑Sorry, yes.
PN695
Do you accept some years ago that again, it might be out of your knowledge, but the serving jackets, are they in or out of being a uniform that shall be laundered by the company at its expense?‑‑‑The serving jackets I believe currently are machine washable, therefore, the individual washes those and not dry cleanable.
PN696
So you're assuming and you don't know as a matter of the current position?‑‑‑I d need to double‑check the uniform. My understanding is that serving jackets are machine washable and therefore are not covered by dry cleaning.
PN697
And so have serving jackets always been that position?‑‑‑I'm aware of some correspondence - I think it was in the late nineties between the FAAA and Qantas in relation to serving jackets. I think for a period they were or that a particular serving jacket was dry cleanable or shifted from being washable to dry cleanable and I think in around 1999 or 2000 on the basis of some fabric changes, the serving jacket returned to being a machine washable fabric.
PN698
So the position of the company is to exclude items that shall be laundered at its expense until persuaded otherwise. Is that correct?‑‑‑So by that I mean we re talking about machine washing of clothing? So where it is, I think it s machine washable or hand washable, something to that effect. Those are not covered by the dry cleaning arrangements.
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN699
So if I could show the witness two letters going back to 1999, Commissioner, which are attached in the statement of, I think, Mr Brown ‑ ‑ ‑
PN700
MS McKENZIE: Mr Reed as well.
PN701
MR BAARINI: Sorry, Mr Reed, actually. Yes, sorry, Mr Reed.
PN702
MS McKENZIE: I think they're in both.
PN703
MR BAARINI: Yes.
PN704
SR2 and SR3. Have you seen those two letters before, Mr O Connor?‑‑‑Yes, I have.
PN705
Do you accept that the company sought to exclude them initially and then when persuaded otherwise, they were included in?‑‑‑(No audible answer).
PN706
Do you accept that?‑‑‑So they were excluded and then added in later, yes.
PN707
I put it to you that those jackets, now on your evidence, is that they're now taken back out. Is that correct? People have to launder them at their own expense?‑‑‑Well, the serving jacket is, but it is a different serving jacket. I can t comment on the difference between the fabrics or the cleaning requirements of the serving jacket from 1999.
PN708
So the determination as to which jackets, whether it s serving or otherwise, gets included for laundering at the company s expense is determined by the company outside of the enterprise agreement. Is that correct?‑‑‑Yes.
PN709
And, therefore, do you accept that, as you've said at paragraph 6 of your statement:
PN710
Qantas policies do not, and are not, intended to override provisions in the enterprise agreement, rather they are intended to, where necessary, explain how enterprise agreements operate in practice or provide additional detail.
PN711
Is that correct?‑‑‑Yes.
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN712
Do you accept that or can you explain how the manual gets updated every six months? I think there was some suggestion earlier today that the manual gets updated every six months. Is that correct?‑‑‑The CCOM you're referring to?
PN713
Yes?‑‑‑There is a periodic review of the CCOM that takes place in terms of a, I guess, manual reissue. I think it s every six months and it is largely made up of either administrative or perhaps safety or process changes or standard operating procedures for cabin crew which come out, you know, between the manual updates.
PN714
That started at the instigation of the company and by the company?‑‑‑Yes.
PN715
So employees are at the behest of the manual that comes out from time to time updated. Is that correct?‑‑‑Yes.
PN716
So the cost that they ve got insofar as the manual which talks about:
PN717
All garments not represented below should be laundered in accordance with the care instruction label within the garment at the staff member s expense
PN718
which is first introduced in the 10 December 2010 Cabin Crew Operations Manual. That is a cost that the company has seen fit on the employee to bear. Is that correct?‑‑‑Yes, but I guess in consideration for as I said earlier in my statement, around the fact that we also pay allowances SDTAs, no DTAs, which ‑ ‑ ‑
PN719
Yes, I'll get to that in a minute?‑‑‑Okay.
PN720
But that s frankly the position of the company. Is that correct?‑‑‑Correct.
PN721
If I could hand the witness a letter or a memorandum which is SB4 in Mr Simon Brown s statement?‑‑‑Thank you.
PN722
On the second page it talks about an industrial maxim. Can you just read that out to the Commission?‑‑‑Sorry, can you just ‑ ‑ ‑
PN723
On the second page ‑ ‑ ‑?‑‑‑Yes.
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN724
The second paragraph I think it is, which is highlighted by the ‑ ‑ ‑?‑‑‑Highlighted? So it says:
PN725
Of all these problems it could be possibly eliminated by the payment of an allowance. It is an accepted industrial maxim that employers generally pay for the upkeep of uniforms required to be worn by employees. The situation may be capable
PN726
do you want me to keep reading or just the highlighted ‑ ‑ ‑
PN727
Yes, just the highlighted?‑‑‑Okay.
PN728
So do you accept that and you've been in the airline industry for how many years, Mr O Connor?‑‑‑Just over 10 years.
PN729
So do you accept that as a matter of proposition that uniforms that are supplied by an employer to the employee, whilst maintained by the employee, the general upkeep, that the cost for dry cleaning or laundering is borne by an employer?‑‑‑Yes.
PN730
The purpose of that memorandum was essentially to address that very issue by the company back in, I think it was ‑ ‑ ‑?‑‑‑It says dated 1992.
PN731
Back in 1992.
PN732
MS McKENZIE: I object to the question. I don't know how Mr O Connor can say what the purpose of a memo written by someone else in 1992 is.
PN733
MR BAARINI: Yes.
PN734
But do you accept as a matter of fact that the company had turned their mind to this issue back in 1992 by virtue of that correspondence?‑‑‑I guess without seeing the letter that it s in response to, I'm not sure of the full context of why there was this correspondence in relation to it, but I accept that it references dry cleaning and or laundering, I think it is, of uniforms or allowances.
PN735
Do you differentiate between dry cleaning and laundering in your terminology, Mr O Connor?‑‑‑Sorry, do I differentiate?
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN736
In using the word laundry or dry cleaning do you differentiate between the two or are they interchangeable?‑‑‑Yes. When I think about in the context of our uniform, to be dry cleaning and laundering, for me cover the same elements of cleaning the uniform.
PN737
So if I could show you your email to Mr Simon Reed, which is SR10?‑‑‑Yes.
PN738
In which you say:
PN739
Hi Steven, Qantas will continue to pay laundry costs on Qantas uniforms in accordance with the EBA, as had been the practice prior to the introduction of the new uniform late last year.
PN740
You didn't use the word dry clean there. You used the word laundry . Is that correct?‑‑‑That's correct.
PN741
Do you also accept that the uniform procedure, which is NOC1 of your statement, at page 10, paragraph 5.7A:
PN742
Each employee is responsible for following the individual maintenance requirements for his or her uniform items. If laundering is provided
PN743
now that doesn't if dry cleaning is provided . It says if laundering is provided . Is that correct?‑‑‑That's what that says. Correct.
PN744
Then it goes on at the end of that sentence
PN745
if no laundering is provided.
PN746
It doesn't say if no dry cleaning is provided . It says if no laundering is provided . Do you accept that?‑‑‑That's what it says there. That's correct.
PN747
The employee will maintain the uniform to a standard in accordance with policies and care labels.
PN748
Is that correct?‑‑‑It says yes, so it says:
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN749
If laundering is provided, it will be carried out in accordance with the rate of policies, procedures and care instructions.
PN750
So the word launder is the word that is used consistently in the EBA, in the policy, procedure manual and in fact in your email to Mr Reed of the FAAA. Is that correct?‑‑‑That's correct.
PN751
What is the difference for treating silk scarves any different to any other scarves?‑‑‑My understanding is the fabrics need to be cared for differently.
PN752
But they're still able to be laundered or dry cleaned, are they not, by your preferred supplier, Mr O Connor?‑‑‑I think a number of the items have the option sorry, have the care label describing, you know, machine washable or dry cleanable. I can't recall specifically what the silk scarf says or the alternative scarf.
PN753
Who puts those labels on them?‑‑‑I would assume, to be frank, it s the manufacturer based on the materials that are used.
PN754
Is that determination as to whether something is dry cleanable or dry clean only the manufacturer instruction or an instruction by the company to the manufacturer when manufacturing?‑‑‑I have no - I ve had no involvement in conversations between Qantas or, you know, the manufacturer in relation to how to treat labelling on garments. I can t comment on it in terms of those conversations.
PN755
But even if those instructions were the care in washing or dry cleaning, that is essentially the instruction for whoever is doing it to use additional care, depending on what the factory is. Is that correct?‑‑‑In terms of what the label is trying to describe.
PN756
Yes?‑‑‑So the label is there designed to help determine the best way to maintain or clean the uniform.
PN757
Yes?‑‑‑Yes.
PN758
But that doesn't prevent it from going to your preferred dry cleaning supplier to get it washed or cleaned. Is that correct?‑‑‑The label doesn't prevent it. I guess it s our - you know, the arrangement we have in place with the dry cleaners that talks about what is covered.
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN759
Yes?‑‑‑Yes.
PN760
And that arrangement is borne by the company practice over many years?‑‑‑Yes.
PN761
Whilst that practice exists, employees have complied, you've taken that to me what it is in the enterprise agreement. Is that correct?‑‑‑Yes.
PN762
If I could take you to - I think it s in Ms McKenna s statement, Commissioner SM5. It s the one headed with Garment Care Instructions. It comes from the cabin crew web site 15 April 2014 version 1. Sorry, it s probably my notes on this, sir.
PN763
Have you seen that before, Mr O Connor?‑‑‑Yes.
PN764
Does that come from the cabin crew web site?‑‑‑It s hard to determine if this is actually cut and pasted. There s no reference to it on the bottom in terms of URL link, but it seems consistent with what I ve read on the cabin crew web site.
PN765
Do you accept that on that web site page, if that is a true and correct extract of it, it differentiates or provides some direction as to what is dry clean only and what is dry cleanable items?‑‑‑Yes.
PN766
Do you also accept that that differentiation does not exist in either the uniform procedure that s at NOC1 of your statement?‑‑‑Yes.
PN767
It does not also exist in the cabin crew administration manual going back to 1996 to today. Is that correct?‑‑‑Yes, that's correct.
PN768
So who determines the classifications that appears on that web page, Mr O Connor?‑‑‑I guess Qantas uniforms provide guidance around the care requirements of garments and the web site is updated to reflect those care instructions.
PN769
Why aren t pantyhose dry cleanable or dry clean only?‑‑‑I'm sorry, I'm not really sure why they're not dry clean only or dry cleanable.
PN770
I mean, it s an item that s provided by the company, is it not?‑‑‑It is.
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN771
Is it an item that can be dry cleanable or dry clean only?‑‑‑I would have to look at the instructions on the packet of pantyhose that explains how to care for them.
PN772
So is it an item of uniform that you'd expect not to be returned back to the company?‑‑‑Correct.
PN773
Is it for that very reason that you provide six pairs every so often.
PN774
THE COMMISSIONER: Two months, I think.
PN775
MR BAARINI: Yes?‑‑‑Not being a big wearer of them, I assume it s also to do with things like wear and tear and some of the other, you know, recyclability of pantyhose. So I guess it s about making sure that they're available to crew on a reasonable basis to help them, you know, maintain the grooming standards.
PN776
So if you provided an employee with pantyhose, presumably a female employee, would you is there a requirement for them to wear it?‑‑‑I'm not sure there s a requirement to wear that particular pantyhose. There is a requirement to wear a pantyhose of a particular standard.
PN777
If you were to provide Ms Susan McKenna with a cardigan, would you require her to wear that cardigan?‑‑‑No.
PN778
Are you saying that Ms McKenna is at liberty to wear another cardigan not supplied by the company?‑‑‑No, I'm not saying that. What I'm saying is the cardigan is an optional component of the uniform. So to the extent she chooses to: (a) procure it through - you know, through the uniform department and then choose to wear it is, I guess, a matter for her.
PN779
That's being a bit fine, aren t we, Mr O Connor? In a general instruction if Ms McKenna so chooses to wear a cardigan does she have to wear a company supplied cardigan?‑‑‑Yes, correct.
PN780
So the requirement for her in wearing a cardigan is limited to what the company supplies her. Is that correct?‑‑‑Yes.
PN781
Whether she wears it or not is a matter for her. Is that correct?‑‑‑Correct. I guess what I'm saying is it s not a mandatory uniform item.
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN782
Yes, but if she was to wear it, it would have to be a company supplied one?‑‑‑Correct.
PN783
The two trousers?‑‑‑Yes.
PN784
The company supplies trousers?‑‑‑That's correct.
PN785
They don t have the flying kangaroo on them anymore?‑‑‑I believe so.
PN786
They come in a certain colour?‑‑‑Correct.
PN787
What colour is that?‑‑‑I think it s like a dark navy colour.
PN788
Is there a requirement for the employee to wear those trousers?‑‑‑Yes.
PN789
So if an employee was to choose trousers - let s assume the particular style doesn't is not the taste of the employee, everyone has got their own taste, but if an employee was to obtain trousers that looked similar, of the same colour, could that employee wear them?‑‑‑No.
PN790
So because the employee is required to wear those trousers, the company is prepared to pay for dry cleaning them. Is that correct?‑‑‑To the extent they need to be dry cleaned. Yes.
PN791
So the limitations that the company puts on what is to be dry cleaned or laundered is really a matter of what the company deems as reasonable and appropriate. Is that correct?‑‑‑Sorry, can you please ask that question again?
PN792
What s determined by the company to be reasonable or appropriate for dry cleaning is a matter determined by the company. Is that correct?‑‑‑I guess it s in terms of what s covered by dry cleaning, we have a longstanding practice of dry cleaning and dry cleaning only garments and the care labels on the uniform items determine what is dry cleaned and what is washed.
PN793
But other than what is in those labels ‑ ‑ ‑?‑‑‑Yes.
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN794
There s nothing to prevent an employee from taking those items to a company preferred supplier to get them washed and cleaned. Is that correct?‑‑‑No, other than the fact there s no the dry cleaner shouldn't be accepting them.
PN795
That's because they receive instructions from the company. Is that correct?‑‑‑Correct.
PN796
White shirts are provided to both female and male attendants?‑‑‑Yes.
PN797
White shirts have never been included by the company as a matter of practice for dry cleaning. Is that correct?‑‑‑That's my understanding.
PN798
Do you know the reason for that?‑‑‑I can only I don t. I don't know the reason. I can only assume it s because they have always been probably machine washable as opposed to dry clean, dry cleanable or dry clean only.
PN799
But do you take some of your own shirts to a laundry to get pressed and ironed and the rest of it?‑‑‑On occasion.
PN800
So what s to stop the company from allowing an employee or employees from taking white shirts to your preferred supplier to get that done?‑‑‑For us it would require, I guess, to change the policy in relation to that.
PN801
The change of policy is borne by virtue of the fact that there s going to be some significant cost on the company in allowing that to occur. Is that correct?‑‑‑So the current policy exists because of that, are you saying?
PN802
No, no. If the company was to allow employees to take their shirts for dry cleaning or pressing, or washing for that matter, that would be an additional cost on the company that the company is not prepared and never been prepared to bear the cost of. Is that right?‑‑‑Well, in addition to the existing allowances which we believe obviously cover the cost of washing items, there would be an additional cost associated with allowing cabin crew to take washable items to dry cleaners for cleaning.
PN803
Could you take me to those analysis?
PN804
THE COMMISSIONER: You might have to take him to it after we've had a break for lunch.
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN805
MR BAARINI: Thank you.
THE COMMISSIONER: So we'll resume again in about an hour.
<THE WITNESS WITHDREW [1.09 PM]
LUNCHEON ADJOURNMENT [1.09 PM]
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
RESUMED [2.13 PM]
<NICHOLAS CHRISTOPHER MATTHEW O'CONNOR, RECALLED ON FORMER OATH [2.13 PM]
CROSS-EXAMINATION BY MR BAARINI [2.13 PM]
PN807
THE COMMISSIONER: Mr Baarini.
PN808
MR BAARINI: Thank you, Commissioner. I think the question I was about to ask before our lunch break, Mr O Connor, was about the overseas daily travelling allowance. Can you explain in your own terms what the overseas daily travelling allowance is for?‑‑‑So the EBA talks about the overseas daily travelling allowance. It talks about a fixed dollar amount. It doesn't stipulate specifically what that covers, just summarises a dollar amount and indexed.
PN809
So you'd accept there is no definition for what is overseas daily travelling allowance?‑‑‑Correct.
PN810
Is that the same for the standard daily travelling allowance in clause 13.5 of the agreement?‑‑‑So the standard daily travelling allowance provides more context in terms of what it covers.
PN811
But there is no definition in the enterprise agreement for standard daily travelling allowance?‑‑‑Not a definition for it, no.
PN812
You accept that the allowance is compensation for expenses incurred by them being employees in the course of or arising out of the employment whilst flying overseas?‑‑‑Yes.
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN813
Such expenses are defined as being cost associated with overseas laundering and the like. Is that correct?‑‑‑Correct.
PN814
If an employee was to exercise overseas laundering, are they able to bring back the invoice and claim that for reimbursement from the company back in Australia?‑‑‑I d say the normal practice is no.
PN815
Do you also accept that overseas laundering is only one component of the cost of the standard daily travelling allowance compensates for? It s not a substitute for or exclusive to overseas laundering?‑‑‑Yes.
PN816
Do you also accept that the likes of Ms McKenna, who s given evidence today, and other flight attendants take additional uniform items with them as spares or back‑up in the event that they need to use a new uniform on their way back?‑‑‑Yes, I can imagine they would.
PN817
If I could take you to paragraph 17 of your statement, and before I do that, just going back to your answer that employees are unable to claim reimbursement for laundering that s incurred overseas ‑ ‑ ‑
PN818
MS McKENZIE: That's not what his answer was. He said, Not in normal circumstances.
PN819
MR BAARINI: I thought your answer, and correct me if I'm wrong, is that employees who incur a cost for laundering overseas are unable to bring back the receipt to claim reimbursement from the company. Is that correct?‑‑‑So I think it depends on it would be a little bit on a case‑by‑case basis in terms of maybe what some of the cause or factors were around, either damage to uniform or some other cleaning requirements, but the SDTA provides expenses to cover that.
PN820
In a sense, it s to prevent people from double dipping. Is that correct?‑‑‑I guess, yes, yes.
PN821
If the cost of the invoice was greater than let s assume that an employee was to do overseas laundering and the cost of that is greater than the weekly amount that s paid for the travelling allowance, employees are unable to claim the difference that they have incurred out of pocket. Is that correct?‑‑‑Correct.
PN822
So going to paragraph 17 of your statement, it talks about:
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN823
Since I ve been employed with Qantas, it has been Qantas practice to pay for dry cleaning of dry clean only garments and require cabin crew to be responsible for the washing of the machine or hand washable items of their uniform themselves.
PN824
Is that correct?‑‑‑That's correct.
PN825
That's a practice and not a sorry, you've accepted that is a practice that s subject to change?‑‑‑Well, that s the that is the practice as has been applied in my time at Qantas.
PN826
That practice is subject to change?‑‑‑It could be changed.
PN827
Sorry?‑‑‑Yes.
PN828
Yes? The wording of the enterprise agreement doesn't change at the same time, does it?‑‑‑No.
PN829
So if I could take you to the operations manual that s - Cabin Crew Operations Manual 10 December 2010, which is I think attached to your statement, Mr O Connor?‑‑‑Yes.
PN830
Do you see that one?‑‑‑Yes, page 23?
PN831
Yes?‑‑‑Yes.
PN832
Do you see that the dry clean only section, those dot points, includes women s and men s suits jackets, trousers, pants and shorts, wool dresses, shirts? Do you see that?‑‑‑Yes.
PN833
So are shirts things that the company dry cleans at the company s expense or not?‑‑‑If the shirt was dry clean only, I would suggest that that would then apply in that circumstance.
PN834
That's a suggestion not a point of knowledge. Is that correct?‑‑‑Well, that is how I would interpret that.
PN835
How does that then read against the earlier paragraph further up at 4.10.2, the second paragraph says:
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN836
The dry cleaning card must be shown when depositing cleaning garments. Shirts, aprons and serving jackets are not acceptable for dry clean.
PN837
Which of the two applies?‑‑‑So I would say that unless it says otherwise, dry cleanable items or dry clean only items are dry cleanable and all other items are machine washed or hand washable.
PN838
So if I was an employee looking at that manual and I had a shirt ‑ ‑ ‑?‑‑‑Yes.
PN839
‑ ‑ ‑ can I take that shirt to be dry cleaned by the cleaner?‑‑‑Where it says dry clean only as you can see only is in capitals, which I think stipulates that it s focused on the care instructions.
PN840
Do you also accept that the dry clean only lists the items that are only to be dry cleaned? So there s the in box for what the company will dry clean and pay for. Is that correct?‑‑‑Yes.
PN841
And above that there are things that are excluded from not accepted for dry cleaning is three things: shirts, aprons and serving jackets. Do you accept that?‑‑‑Yes.
PN842
What s missing out of the in and out box are items like scarves. Do you accept that?‑‑‑Yes.
PN843
Cardigans?‑‑‑Yes.
PN844
Waistcoat, vest?‑‑‑Yes.
PN845
And so if you're an employee wearing any of those items, this manual doesn't direct you as to where to go for dry cleaning. Is that correct?‑‑‑Correct.
PN846
Do you also accept that you said earlier that the practice does change? One of the example of the practice changing is in relation to the serving jackets. At one stage it was out?‑‑‑Correct.
PN847
And then it came back in?‑‑‑Yes.
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN848
And now it s out again. Is that correct?‑‑‑Yes.
PN849
So the practice has changed, but the words in the enterprise agreement have not?‑‑‑That's my understanding.
PN850
Yes. Do you also accept that whilst aprons and if I could take you to the next page, I think, which is sorry, the one after that, which is the Cabin Crew Operations Manual 27 April 2012?‑‑‑Yes.
PN851
MS McKENZIE: It s two after it, I think.
PN852
MR BAARINI: Sorry, two after it. Yes, thanks.
PN853
Do you accept that that is the current whilst it s dated 27 April 2012, that still remains the current manual that s applied?‑‑‑That is the current CCOM reference, yes.
PN854
You'll note that it also excludes again shirts, aprons and serving jackets are not accepted for dry cleaning? Do you accept that?‑‑‑Yes, I accept that.
PN855
Do you have a copy of the Style On Q booklet?‑‑‑No, not with me.
PN856
I'm wondering whether we might be able to hand a copy to the witness?‑‑‑Thank you.
PN857
Can you take me to anywhere in this Style On Q that aprons are referred to either for dry cleaning, dry cleanable or neither?‑‑‑I think aprons actually aren t part of the cabin crew uniform currently.
PN858
Yes?‑‑‑So on the new uniform I don't believe there is an apron.
PN859
Do you accept that the operations manual needs revision to reflect the current uniform Martin Grant?‑‑‑I accept that it could do with updating to accept some of the uniform changes that have come through.
PN860
Do you also accept that the waistcoats replace the aprons?‑‑‑On what basis do you think they replace the apron?
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN861
That they are what - they're the waistcoat vests that replaced aprons. So the employees wear a vest, if they choose to, in place of an apron under their ‑ ‑ ‑?‑‑‑So an apron is no longer part of the uniform when we launched it in, I think, December 13.
PN862
So instead ‑ ‑ ‑?‑‑‑But waistcoats became a new feature as part of the uniform.
PN863
Yes?‑‑‑Correct.
PN864
So looking at page 25 of the Style On Q Martin Grant, you'll see that aprons, whilst under the current manual is not accepted for dry cleaning, on page 25 jackets and waistcoats are dry clean only. Do you accept that?‑‑‑And waistcoats, yes. I accept that.
PN865
So whilst aprons were out, waistcoats are now in?‑‑‑Correct.
PN866
So the practice has changed, depending on the new uniform. Is that correct?‑‑‑Based on the materials that have been used.
PN867
Yes, and I was going to get to that with materials?‑‑‑Yes.
PN868
Who chooses the materials?‑‑‑I can t answer that. I'm not sure if that s Qantas uniforms, if that s the designers. So I'm not clear on how the selected materials are determined.
PN869
Is there any consideration for the choice of fabric or materials in determining whether to include something as dry cleaning only or dry cleanable?‑‑‑In terms of the required caring of the garments, I can t comment on that. I'm aware of, you know, being mindful of the selection materials for the purposes of breathability and, you know, comfort for the people that need to wear them, but in terms of how they determine what should be dry clean only and, you know, what should be machine washed, I'm not sure how that process works.
PN870
Do you think there s any consideration in that process in determining which choice of uniform to adopt?‑‑‑I d imagine there d be some consideration given to it.
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN871
Because if there was no consideration and all the fabric that was chosen in the Martin Grant uniform was such that it was washable by machine and potentially the cost to the company in laundering would be significantly reduced and the cost moved to the employee. Is that correct?‑‑‑That would be correct.
PN872
So the choice of fabric determines whether it is dry cleanable or dry clean only?‑‑‑Correct.
PN873
The choice of the fabric determines who ultimately then on the practice of the company bears the cost of laundering the uniform. Is that correct?‑‑‑That is correct, but I guess what I would say is that again I'm of the view that the ODTA provides coverage for the expenses associated with laundering or washing uniforms.
PN874
The ODTA, is it?‑‑‑Or the daily travelling allowance.
PN875
The overseas daily travelling allowance?‑‑‑Correct. The 53 or 56 dollars.
PN876
You say that that, despite there being no definition in the enterprise agreement, compensates for that very factor, does it?‑‑‑My understanding has been that those allowances provide coverage for, you know, costs associated with maintenance or laundry of uniforms.
PN877
You accept that what you just is not included in the terms ‑ ‑ ‑?‑‑‑Correct.
PN878
‑ ‑ ‑ of the EBA and overseas daily travelling allowance?‑‑‑There s no definition in the EBA. Correct.
PN879
Just a few more questions, if I might, Commissioner, with your indulgence. Do you also if I take you to page 25 of Style On Q see knitwear, dry clean only?‑‑‑Yes.
PN880
Do you see that that s also not included in the Cabin Crew Operations Manual as an item for dry clean only?‑‑‑That's correct.
PN881
If I could take you to paragraph and so paragraph 33 of your statement, last sentence:
PN882
The serving jackets and the Martin Grant uniform are machine washable.
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN883
?‑‑‑Yes.
PN884
So the choice of the fabric determined the outcome of whether they are dry clean or dry cleanable. Is that correct?‑‑‑That would be my understanding.
PN885
So the uncertainty of what s in or out is not so much the words, but the choice of the item. Is that correct?‑‑‑Can you ask the question again?
PN886
So the uncertainty that exists in relation to what items are included for dry clean only or dry cleanable is not so much what the words might be in the EBA, but what is the choice of fabric used for an item?‑‑‑Sorry, I'm probably a little bit unsure about when you say the uncertainty . So I think ‑ ‑ ‑
PN887
The choice of whether something is in or out of the list for dry clean only ‑ ‑ ‑?‑‑‑Being dry clean, yes.
PN888
Is determined not by what the enterprise agreement says, but the choice of fabric?‑‑‑Based on the care instructions associated with the fabric or the garment, yes.
PN889
If I could take you to paragraph 24, $500,000 is approximately the cost, annual cost, to the company for laundering uniforms. Is that correct?‑‑‑For all Qantas and QCCA crew, yes.
PN890
And so what percentage of the uniforms not percentage, but would you say that the company actually launders the majority of the uniforms that are issued to employees that make up the 500,000?‑‑‑Sorry, can you reframe the last question again?
PN891
We've got a list that we've identified in the manual as before that are dry clean only?‑‑‑Correct, yes.
PN892
And we've got page 25 that provides a list of all the garment care items?‑‑‑Yes.
PN893
How many of those items are dry clean only items that would make up the cost to the company insofar as its expense?‑‑‑Well, in terms of the 500,000, that is the cost of, you know, dry cleaning, you know, from Lawrence and the associated providers of dry cleaning. So to the extent those dry cleaners are dry cleaning the items that they're supposed to be, all of that is dry clean only items.
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN894
If the company was to meet the costs of the dry cleaning cleanable items, not the dry clean only, but the dry cleanable items ‑ ‑ ‑?‑‑‑Yes.
PN895
That the company says that the employee should wash at home, what would be the significant additional cost to Qantas?‑‑‑So we would yes, well, I would estimate that cost would be an additional cost, somewhere conservatively between 400,000 as, you know, potentially more than a million dollars worth of additional cost.
PN896
An additional million?‑‑‑Potentially. Depending on, you know, as you depending on the usage, I guess, and uptake and frequency.
PN897
What do you base that on, which items?‑‑‑So for essentially providing the cost so the costs associated with, say, a Lawrence dry cleaner, also washing and pressing shirts or serving jackets or other items which are currently classified as, you know, machine washable or gentle hand wash.
PN898
Is that significant additional cost something that is factored into the decisions that are made by the company as to which items should be laundered at its expense?‑‑‑Not in my experience it hasn't been.
PN899
But when you come to negotiate enterprise agreements, is it factored into those negotiations?‑‑‑All I can say is it wasn't a point of conversation that I recalled from the EBA 9 discussions. I can t give context to EBA 8 and earlier in terms of how laundry otherwise featured in those discussions.
PN900
So there s no common practice amongst cabin crew as to how often they dry clean the dry clean only items of their uniform?‑‑‑No.
PN901
You don t stipulate in any of the documents that you give to the employees, whether it s via manual or procedure or policy, as to how often they dry clean their dry clean only items?‑‑‑That's correct.
PN902
In fact, you're very because the overall dry cleaning costs for cabin crew have not been unreasonable, you haven't sought to regulate if. Is that correct?‑‑‑Well, I guess, you know, we monitor obviously the spend annually and determine whether or not it seems reasonable, given the changes in flying and the size of the population, et cetera.
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN903
So would you say that the cost, the annual cost, of laundering uniforms over the years has increased or has it been roughly the same?‑‑‑I haven't gone back to prior years. I assume it s roughly the same.
PN904
Despite the growth in the number of employees?‑‑‑Well, I d possibly argue to some extent there s been a reduction in the number of employees within the international division over the last few years.
PN905
Yes, but would the 500,000 figure be a cost that you say you've incurred for the last few years or it s roughly been the figure for many years?‑‑‑I d say it s reasonably consistent with the last couple of years, I would suggest.
PN906
If I said to you that that figure was exactly the same figure that s been reported in earlier communications as far back as the 90s, what would you say, Mr O Connor?‑‑‑I would say that I haven't seen information to suggest that s the case.
PN907
Sorry?‑‑‑I haven't seen information that suggests that s the case.
PN908
I'll see if I can find that for you. If I could hand to the witness a memorandum, SB2, Mr Simon Brown s document, dated 25 August 1988?‑‑‑Thank you.
PN909
I know you're not the author of it. Is this the first time you've seen it?‑‑‑Yes, I would think so.
PN910
If you turn over the page, you'll see what the average costs - I think I ve highlighted them to assist you?‑‑‑Yes, you have. Yes.
PN911
If you do the multiplication of the months it gets you to about $504,000?‑‑‑Yes.
PN912
So in 1988 the annual cost for the company for laundering uniforms for international cabin crew was about $504,000?‑‑‑Okay.
PN913
And in your statement today it s approximately $500,000?‑‑‑That's correct.
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN914
I take it from that, that the company s practice on what uniforms it cleans or doesn't dry clean is the subject of the cost implication that it has on the bottom line for the company. Is that correct?‑‑‑I can t say that that is the case. Certainly, any conversations I ve been involved in, there s not been a conversation regarding changing of uniform to address the cost issue.
PN915
No, but if shirts were to be included for laundering by the company that would bring about a significant additional cost in addition to the 500, potentially another million dollars. Is that correct?‑‑‑Yes, correct.
PN916
And, therefore, the practice of allowing shirts is not so much that it s not possible under the enterprise agreement, it is an additional cost the company is not prepared to wear. Is that correct?‑‑‑That's not correct.
PN917
Is it a cost that the company, in determining what is to be laundered or not laundered, is something that the company looks at very seriously and if the overall dry cleaning costs for cabin were significant, you would then seek to regulate the frequency of which items were to be dry cleaned. Is that correct?‑‑‑Sorry, can I ask from how you're drawing that conclusion?
PN918
If the overall dry cleaning costs for the cabin crew were unreasonable, you would seek to regulate which employees because at the moment you have no idea which employees dry clean and which employees don t or how many times. Is that correct?‑‑‑We can get reporting.
PN919
But you don t regulate it or monitor it?‑‑‑We don t currently no, we don t generally audit it, no.
PN920
What you look at is the overall cost of what it s costing the company and you make an assessment as to whether it s reasonable or unreasonable. Is that correct?‑‑‑Generally, yes.
PN921
So you don t know which items in the garment care on page 25 of the Style On Q is being taken into the dry cleaners more so than others, do you?‑‑‑No.
PN922
You don't know statistically which is being taken in less so than others?‑‑‑That's correct.
PN923
So, really, your assessment as to what is reasonable and unreasonable is determined not by usage, not by fabric, not by item, but the cost. Is that correct?‑‑‑That's an indication about whether or not there s been a change in people s practice.
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN924
If people are now through this dispute saying, Well, hang on. Why am I now having to wear the cost of cleaning these things at home and washing them, time and money? I ve put up with it for 20 years, like Ms McKenna, but I'm no longer prepared to do it, is it your response that, Well, that s our practice. We'll maintain our practice because it s good for us so it s good for you ?‑‑‑No. I think my responsibility is in point 21 of my statement, which is I understand that the allowances, being ODTA and SDTA, include a component to compensate crew for the expenses incurred in laundering some of the uniform items.
PN925
So you weren't at Qantas at the time they were introduced?‑‑‑No.
PN926
So you don't know specifically why they were introduced. Is that correct?‑‑‑That's correct.
PN927
Your understanding is based on information that you might have received or inquired about?‑‑‑Yes.
PN928
But you don't know for sure that that s what it was for?‑‑‑Correct.
PN929
And you also, even in your own statement, say it includes a component to compensate, but it s not compensate exclusively for. Is that correct?‑‑‑It doesn't say exclusively for . No.
PN930
No. It s also for expenses incurred in laundering some, but not all items of uniform. Is that correct?‑‑‑Correct.
PN931
Just finally on this question and I'll finish up here. If I could take you back to your Cabin Crew Operations Manual?‑‑‑Yes.
PN932
Again, at this statement that says:
PN933
All garments not represented below should be laundered in accordance with the care instruction label within garment at the staff member s expense.
PN934
?‑‑‑Sir, can I just check you're on page 25?
PN935
Sorry. Page 23?‑‑‑23?
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN936
Yes, I'll go to page 25?‑‑‑25? Okay.
PN937
Yes:
PN938
All garments not represented below should be laundered in accordance with the care instruction label within garment at the staff member s expense.
PN939
Do you see that?‑‑‑Yes.
PN940
Do you see that it uses the word should not must ?‑‑‑Yes.
PN941
So do you accept that if we re looking at the plain meaning of words that that doesn't actually give a requirement or a direction for the employee to do anything at their expense. Do you see that?‑‑‑Yes, sorry, can you ask the question again?
PN942
Yes. If I take you back. The below list of garments are garments that are to be dry cleaned at Qantas expense?‑‑‑Yes.
PN943
Do you see that?‑‑‑Yes.
PN944
That is a positive obligation on Qantas to dry clean at its expense?‑‑‑Yes.
PN945
Do you see that?‑‑‑Yes.
PN946
The next sentence says:
PN947
All garments not represented below should be laundered in accordance with the care instruction label within the garment at the staff member s expense.
PN948
Is that correct?‑‑‑Yes.
PN949
Now the words should be doesn't create a direction on the employee to do it, does it?‑‑‑I would interpret that to be the case, but when you put the word must over it, I understand that that might change the context.
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR XXN MR BAARINI
PN950
So really the company is would you accept this proposition telling employees, We'll clean what we choose to clean and we re not directing you, we re saying you should launder everything else at your expense, but don t come back to us if you don t do it because we re not going to launder it for you. Do you accept that Ms McKenna and others have no choice other than to clean wash and clean and iron at home because the company has left them with no choice but to do that?‑‑‑Well, we d ask them to take care of the other garments that are not covered by dry cleaning. Whether they choose to do that at home or have someone else do that for them, I guess is a matter for the individual.
PN951
But whilst you've created a positive obligation for you on some things you haven't made that expressly clear as to what their responsibility is in relation to the others, have you? You've just left it for them to determine what they should do, how they should do it, when they should do it and for which items. Is that correct?‑‑‑Yes.
PN952
Thank you. No further questions, Commissioner.
THE COMMISSIONER: Re-examination, Ms McKenzie?
RE-EXAMINATION BY MS MCKENZIE [2.44 PM]
PN954
MS McKENZIE: Just one small matter. I don t need the lectern.
PN955
Mr O Connor, you were asked some questions in relation to the version of the Cabin Crew Operations Manual dated 10 December 2012, which is page 23?‑‑‑Yes.
PN956
Can I ask you first to turn to page 25, which I think your evidence is, is the current version of the manual?‑‑‑Yes.
PN957
Can I ask you to look at the list under the heading Dry Clean Only?‑‑‑Yes.
PN958
You see four dots down reference to skirts?‑‑‑Yes.
PN959
If you go back a page on 7 December 2011, the immediately preceding version you'll see in the same list that the same dot point there is skirts?‑‑‑Yes, correct.
PN960
Can you go to the version that Mr Baarini was asking you questions of where he drew your attention to the fourth dot point there saying shirts ?‑‑‑Yes.
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR RXN MS MCKENZIE
PN961
Can I ask you whether it s possible that that is a typographical mistake, which is meant to and the word is meant to be skirts ?‑‑‑I think that is possible.
PN962
If that is the case, would that resolve the apparent inconsistency that Mr Baarini drew your attention to by reference to the reference to shirts, aprons and serving jackets not being accepted for dry cleaning further up on that page?‑‑‑Yes, it would.
PN963
Is it the case that Qantas has always dry cleaned skirts?‑‑‑To the best of my knowledge, yes.
PN964
To the best of your knowledge?‑‑‑Yes.
PN965
I think just towards the end of his cross‑examination, Mr Baarini was asking you some questions around the frequency of the dry cleaning of various pieces of uniform. I think your evidence was that you were not or Qantas was not aware of the proportion of items. Can I ask you whether all flight attendants are required to own a jacket?‑‑‑Yes.
PN966
Is it the case that all male flight attendants own a jacket and trousers?‑‑‑Yes.
PN967
And are jackets and trousers dry clean only?‑‑‑Yes.
PN968
Accordingly, are all jackets and all trousers dry cleaned by Qantas?‑‑‑Yes.
PN969
Or at Qantas expense?‑‑‑At Qantas expense, yes.
PN970
I ve got nothing further. Might Mr O Connor be excused, subject to you, Commissioner, of course?
PN971
THE COMMISSIONER: At the very start of your evidence you amended your statement at clause 26?‑‑‑Yes.
PN972
You added the words only airport staff . So it s airport staff and international cabin crew that are provided with the dry cleaning?‑‑‑So just to clarify. When I say airport staff I'm talking about ASU covered airport staff. So customer service agents, both internationally and domestically, are provided with dry cleaning for it s similar to cabin crew and international cabin crew.
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR RXN MS MCKENZIE
PN973
So what about ground staff that might be working at the airport?‑‑‑So when I talk about the airport staff there, I'm referring to the customer service agents, so when you check into a flight, those people would help you. So anyone that s customer facing, they, you know, have a similar uniform to cabin crew and they are provided dry cleaning and for the dry cleaning of the dry cleanable items, but they're responsible for, as I understand it, you know, washing their other shirts and associated garments.
PN974
But in this Style On Q there are people involved in freight, for instance?‑‑‑Yes, yes.
PN975
Up the back here, these freight people, do they get dry cleaning?‑‑‑I don't think anyone else gets dry cleaning. Some of them might get an allowance to cover uniform laundering or other maintenance, but I'm not aware of them getting dry cleaning. I'm not aware of anyone else getting dry cleaning other than airport customer facing staff and international cabin crew.
PN976
So if we went to page 111, for instance, the chap there with the jacket and the long trousers on, although he s got a jacket and long trousers very similar to the ones that the flight crew have ‑ ‑ ‑?‑‑‑Yes.
PN977
He doesn't get dry cleaned?‑‑‑My understanding is that they don t get dry cleaning. They get an allowance to cover or they may get an allowance to cover uniform.
PN978
Yes. And that allowance might be prescribed because they d be under a different enterprise agreement to the one for ‑ ‑ ‑?‑‑‑Potentially, yes.
PN979
In terms of the way that is actually operated, theoretically, if the next uniform had - the entire range was machine washable there would be no work for this provision in the agreement which says, Uniforms must be laundered at the company s expense, because everything would be done by the individuals?‑‑‑Potentially, yes.
PN980
That's theoretically?‑‑‑Theoretic, yes.
PN981
I mean, highly unlikely you ‑ ‑ ‑?‑‑‑Given the custom ‑ ‑ ‑
*** NICHOLAS CHRISTOPHER MATTHEW O'CONNOR RXN MS MCKENZIE
PN982
‑ ‑ ‑ could get a jacket that you could put in a washing machine?‑‑‑Correct. That would be my interpretation.
PN983
But if that was the case?‑‑‑Yes.
PN984
Thank you. Anything arising from my questions at all? No?
You're released and discharged. Thank you for giving your evidence?‑‑‑Thank you for your time.
<THE WITNESS WITHDREW [2.50 PM]
PN986
MS McKENZIE: The next witness for Qantas, Commissioner, is Mr Simon Brown. I think he s just on the floor below, so it just might take a minute for him to be summonsed.
PN987
THE ASSOCIATE: Could you state your full name and address?
MR BROWN: Simon Geoffrey Brown of (address supplied).
<SIMON GEOFFREY BROWN, AFFIRMED [2.50 PM]
EXAMINATION-IN-CHIEF BY MS MCKENZIE [2.51 PM]
PN989
MS McKENZIE: Mr Brown, have you prepared a statement of the evidence that you wish to give in these proceedings?‑‑‑Yes, I have.
PN990
Do you have a copy of that with you?‑‑‑I do.
PN991
Do you say that the contents of that statement, together with the attachments, are to the best of your knowledge true and correct?‑‑‑Yes, I do.
PN992
I tender Mr Brown s statement.
PN993
THE COMMISSIONER: Is there any objection to its admission?
PN994
MR NOLAN: No objection.
PN995
MR BAARINI: No objection.
*** SIMON GEOFFREY BROWN XN MS MCKENZIE
THE COMMISSIONER: Thank you. The document is tendered and admitted without objection and becomes exhibit 7. Exhibit 7 is described as the statement of Simon Geoffrey Brown dated 15 May 2015, exhibit 7.
EXHIBIT #7 STATEMENT OF SIMON GEOFFREY BROWN DATED 15/05/2015
PN997
MS McKENZIE: Thank you, Commissioner. I ve got no further questions for Mr Brown.
PN998
THE COMMISSIONER: That's the evidence‑in‑chief. Cross‑examination?
PN999
MR NOLAN: No cross‑examination from me.
THE COMMISSIONER: None from Mr Nolan? Mr Baarini?
CROSS-EXAMINATION BY MR BAARINI [2.51 PM]
PN1001
MR BAARINI: Thank you, Commissioner.
PN1002
Mr Brown, I'll be very short. You're not the decision‑maker in this dispute?‑‑‑No, I'm not the decision‑maker. No.
PN1003
You didn't review the 23 boxes in archives?‑‑‑No, I did not.
PN1004
So your statement is reliant on advice that you've received from Ashurst Australia, who you instructed to review the material?‑‑‑That's correct.
PN1005
So you're not in a position to provide this Commission with any view about any of the attachments that you've included in your statement. Is that correct?‑‑‑No. Save to say that they are documents retrieved from archives which have been attached as relevant to the matter and the matters at issue.
PN1006
Yes, but save for that statement, you have no factual knowledge of any of the material that s contained in any of those attachments direct or indirect?‑‑‑Well, I have no contemporaneous knowledge of the matters set out in those documents.
*** SIMON GEOFFREY BROWN XXN MR BAARINI
PN1007
How contemporaneous is it? This is an issue that seems to date back to the first enterprise agreement. So you tell me how far back or how relevant?‑‑‑Well, I ve been employed by Qantas since 2011.
PN1008
So whatever knowledge you've got is from that period of time, 21 March 2011?‑‑‑Direct knowledge, correct.
PN1009
It wasn't until you instructed Ashurst Australia that you were able to receive some advice as to what was contained in the archived material. Is that correct?‑‑‑That's correct.
PN1010
Of the 23 boxes of documents you have only seen eight documents that are attached to your statement. Is that correct?‑‑‑That's correct.
PN1011
You don't know what else is in those other 23 boxes?‑‑‑I didn't personally review the 23 boxes, no.
PN1012
So is it possible that there are documents in those 23 boxes that might have some bearing or relevance or connection to the issues that are before this hearing?‑‑‑I didn't review the documents, Mr Baarini. I couldn't comment.
PN1013
So do you accept that there might be a possibility that there might be other documents that might be relevant to this proceeding?‑‑‑Well, I haven't reviewed them, Mr Baarini, so I haven't seen each of the documents within the 23 boxes.
PN1014
When you say at paragraph 6:
PN1015
I ve been advised by Ashurst Australia that the review of the documents has not revealed any previous dispute or discussion
PN1016
you're not in a position to say that you can confirm to the Commission that there are no previous disputes or discussion in relation to this issue?‑‑‑No, I ve taken that on advice from Ashurst.
PN1017
The same would be the case in relation to your position at 6B about their review of the archive documents not revealing any records of any previous discussions with the FAAA about this clause in the context of negotiations to EBA 9 or its predecessor instruments. Is that correct?‑‑‑I ve taken that on advice from Ashurst, yes.
*** SIMON GEOFFREY BROWN XXN MR BAARINI
PN1018
So not only have you not been involved in any disputes or discussions, you have not been involved in any discussions in the enterprise agreement or negotiations for the enterprise agreement or anything to do with this dispute really, have you, Mr Brown?‑‑‑I ve not been involved in EBA negotiations for EBA 9 or its predecessors.
PN1019
So is it possible that your statements could have been included in Mr O Connor s statement the attachments, sorry?‑‑‑Well, save to say that the instructions to Ashurst came from myself.
PN1020
Have you examined the statements that are attached to your - the attachments that are attached to your statement?‑‑‑Yes, I have.
PN1021
If I were to ask you some questions, are you in a position to answer them?‑‑‑I won t know until you ask.
PN1022
That's a good point, save to say that I don't know what you know about these documents other than what you say your knowledge goes back to 2011. So if I was to ask you, for example, SB8, which is a memorandum from Mr Drew Richardson to the ACTU dated 4 July 1997 have you got that before you?‑‑‑Yes, I do.
PN1023
It says:
PN1024
As discussed today, please find attached lists of indicative rates for the dry cleaning of items of company uniform.
PN1025
Do you see included in that is overalls and wind jacket and jumpers?‑‑‑Yes, I do.
PN1026
So is there anything that you could add to this?‑‑‑Well, that appears to be a follow up from an earlier exchange of correspondence from Mr Drew Richardson to Mr Tim Harcourt, a research officer at the ACTU which was dated 13 May 1997 and marked SB7.
*** SIMON GEOFFREY BROWN XXN MR BAARINI
PN1027
But other than that factual point, you're not able to address as to the contents of that document?‑‑‑Well, if you're asking about the reference to, for instance, overalls, this appears to be a follow up memo to the earlier correspondence and discussions referred to within the documents themselves which refer to the ACTU s role as part of the single bargaining unit. So the references, it appears to me, would not have pertained solely to cabin crew, but also to other areas within Qantas Airways Ltd.
PN1028
So would you accept that the value of that attachment for the purposes of today s hearing is limited?‑‑‑You're referring to SB7?
PN1029
SB8?‑‑‑Well, no. I say no because it points to discussions between the industrial relations manager within Qantas Airways Ltd and the ACTU in its capacity as part of the single bargaining unit and is of some use to the matters in dispute in these proceedings insofar as the final point on SB7 makes clear or in that correspondence at the final bullet‑point, Mr Richardson makes clear expressly to Mr Harcourt that for most of our key customer service areas, including cabin crew and airport customer service, the company does not pay for shirts to be dry cleaned or laundered.
PN1030
So are you surmising here as to what s contained in these documents? Are you making this up as you're going along, Mr Brown, or are you ‑ ‑ ‑?‑‑‑No.
PN1031
You know this from knowledge?‑‑‑I'm reading them in their context.
PN1032
It s possible that your context could be wrong. Is that correct?‑‑‑I don't believe it is. I didn't have any firsthand involvement in the matter, Mr Baarini.
PN1033
I know you're not the decision‑maker, but are you involved in the decision‑making process in relation to whether items should be included for dry cleaning?‑‑‑Well, I was privy to the initial discussions with the FAAA when the dispute was first raised and also with members of the TWU when the dispute was first raised. I was privy to those discussions in my capacity as industrial relations manager who was or whose portfolios included at that time cabin crew, both international and domestic, and in that capacity Mr O Connor brought the dispute to me and in my capacity as industrial relations manager, I took it upon myself to assist in the carriage of the dispute.
PN1034
But you're no longer in that position?‑‑‑I'm still industrial relations manager, but I'm no longer I no longer have exclusive carriage of the cabin crew portfolios, no.
PN1035
Who has got that today?‑‑‑Ms Ellen Burt, my colleague.
PN1036
Yes. No further questions, Commissioner.
*** SIMON GEOFFREY BROWN XXN MR BAARINI
PN1037
THE COMMISSIONER: Re-examination?
PN1038
MS McKENZIE: Nothing arising from that, Commissioner.
PN1039
THE COMMISSIONER: Can I just ask you, as an industrial relations manager at Qantas, you have a role that extends beyond just the cabin crew. You deal with the other areas of operation?‑‑‑In my four years, Commissioner, yes, I ve spent some three and a half years with the carriage of the engineering portfolio and more recently carriage of regionals, that is, you know, associated airlines and regional airlines.
PN1040
So different parts of the organisation have different arrangements for uniform laundering and so forth?‑‑‑Yes. I believe so, Commissioner. I'm not privy to all of them, but I do believe that they do vary from portfolio to portfolio or from area of business, yes.
PN1041
Thank you. Anything arising from my questions? No?
PN1042
MS McKENZIE: No, Commissioner.
THE COMMISSIONER: You're released and discharged. Thank you for giving your evidence.
<THE WITNESS WITHDREW [3.01 PM]
PN1044
MS McKENZIE: That completes the evidence of the respondents, Commissioner.
PN1045
THE COMMISSIONER: I don't think we marked the respondent s submissions.
PN1046
MS McKENZIE: No. Perhaps they could be marked.
PN1047
THE COMMISSIONER: Perhaps just for completeness, we might do that for the record.
PN1048
MS McKENZIE: Yes, thank you.
*** SIMON GEOFFREY BROWN XXN MR BAARINI
THE COMMISSIONER: The submissions that have been provided by the respondent dated 15 May 2015 will be marked as Qantas 1.
EXHIBIT #QANTAS 1 SUBMISSIONS BY THE RESPONDENT DATED 15/05/2015
PN1050
MS McKENZIE: I think the TWU s submissions probably haven't been marked either, Commissioner.
PN1051
MR NOLAN: Yes, Commissioner.
PN1052
THE COMMISSIONER: We didn't mark yours either?
PN1053
MR NOLAN: No.
THE COMMISSIONER: All right. We'll do that as well. The first document is an outline of the TWU s submissions dated 17 April 2015 and we'll mark that TWU 1.
EXHIBIT #TWU 1 OUTLINE OF TWU SUBMISSIONS DATED 017/04/2015
THE COMMISSIONER: Then there s another document dated 28 May 2015 which are the TWU submissions in reply and that document will be marked TWU 2.
EXHIBIT #TWU 2 TWU SUBMISSIONS IN REPLY DATED 28/05/2015
PN1056
THE COMMISSIONER: That's tidied all of that up. Mr Nolan?
PN1057
MR NOLAN: I think we re up to the point of submissions, if it please the Commission.
PN1058
THE COMMISSIONER: Yes.
PN1059
MR NOLAN: As we indicated earlier, you've got written submissions and I didn't propose to read out the written submissions, but I'll speak to them if I may. Perhaps I can start off by saying perhaps a few words about what the case isn't about. It s certainly not about an arbitration about what might be fair or reasonable in the circumstances with respect to a uniform laundry allowance and it s not about what might happen in negotiations yet to occur in 2016 and it s not about the merits or otherwise of particular aspects of the manual and so on or anything else that allows us to, you know, descend to that level of detail. What it really is about is the provision in the agreement and what it can only be about is the provision in the agreement and you've been referred to both of those relevant clauses.
PN1060
As we've said in our submissions, we think they're quite straightforward clauses and they're very simply expressed and they're quite emphatic in their terms and the relevant clause says:
PN1061
Uniforms must be laundered at the company s expense.
PN1062
We say that there s very little room for ambiguity or doubt about what that s directed to and we go on and explain in some detail, which I won t read to you, the various items that the clause has been directed to, but we say and this is the important bit that whether an item is dry cleanable or not, if the supplied uniform requires laundering then the EBA is quite specific in that it must be laundered at Qantas expense.
PN1063
As we say, the ordinary meaning of launder is to wash and iron and that s a process that s more commonly associated with items of clothing that have not been laundered by Qantas under its policy, which we say is at odds with the agreement, but has come to include all items of clothing and so much is acknowledged by Qantas and the fact that they unquestionably reimbursed or provided for the dry cleaning of so‑called dry cleanable items of clothing since the year dot. We say that s the matter we re concerned with and we point to the fact that the agreement confers a power to you by way of private arbitration to resolve a dispute between the parties so you're not engaging in any judicial function. You're not imposing a penalty. You're not doing any of the sorts of things that a court would ordinarily be asked to do if there was an allegation about a breach of the agreement, but rather invited to clarify the dispute between the parties over the meaning of these two clauses.
PN1064
So we say again that the clauses are clear and without ambiguity and we say there s no relevance or no evidence, we should say, of surrounding circumstances which a court would ordinarily bring to bear to call our claim into question and we say this in our submissions in reply in a little more detail that extraneous circumstances are irrelevant. They may be in certain limited circumstances, and the various authorities that are brought together in that Golden Cockerel case - they may be relevant in those limited circumstances set out in the Golden Cockerel case, but absent ambiguity, absent the kind of pre-condition to entering upon the Golden Cockerel style of exercise, the words in their unvarnished form really govern the way the agreement is intended to operate.
PN1065
It s not something that allows too much extraneous examination of what might or might not be somebody s preference about what should or should not occur, but rather an exercise that entails in the first place looking at the words used and only in circumstances where the words raise some question or problem that the next part of that exercise is undertaken.
PN1066
So as we've said, the task of interpreting the agreement can t really involve some kind of wishful rewriting of the agreement to achieve what somebody might think with the benefit of hindsight is fair or just or their preferred outcome. It s really the words themselves that determine the meaning of the agreement. You're able to enter upon the dispute, as we've explained in our written submissions, and settle it and we say you're able to settle it in the manner we suggested by making the order that we set out the proposed order that we've set out in paragraph 10 of our main submissions.
PN1067
So that s the argument in a nutshell. We've then had that argument met by the submissions from Qantas that you've had the benefit of reading and as we pointed out in our submissions that have responded to Qantas submissions, Qantas submissions are really framed on a basis which we would suggest is erroneous because they suggest that term launder is somehow or other ambiguous or uncertain and we say we simply reject that construction.
PN1068
We go on to say what we've said, that the ordinary mean of the expression launder is to taken to include in modern parlance dry cleaning as well as washing and ironing. Mr Reed pointed out in his statement and we concede that perhaps some of the material was by way of submission, but we can make that submission, and that is that when one looks at the appropriate and available dictionary definitions, one is not left in any real doubt about what s required by the expression to launder .
PN1069
Indeed, we go further than that and say that we don t really need to go that far because what s occurred here is that Qantas has by its conduct for many, many years really accepted that launder includes dry cleaning. All we re arguing about is whether laundering includes laundering. That's what it comes down to and in circumstances like that when there is a plain and unambiguous meaning to be attached to the word to launder , Qantas can t now say, Well, we can walk away from that meaning and adopt another meaning that doesn't include launder in the definition of the word launder in the agreement, and we say that that just is to use that good old clich a bridge too far. We say that that conduct is accepted in the ordinary understanding of what is embraced by to launder and we say in the circumstances it s really inappropriate to suggest that there is uncertainty or ambiguity.
PN1070
We've pointed to the history and you've heard plenty about the history of the provision and we've pointed out that in these circumstances where there s no real quarrel with the meaning of the words concern those principles that have been set out in the Golden Cockerel case simply aren t engaged. We don't have to go further than the ordinary words to try to explore what the phrase means in the agreement because the ordinary words yield the plain and obvious meaning.
PN1071
So what Qantas is really left with is an endeavour to point to what they describe as a longstanding custom and practice whereby washable items of uniform were not washed or ironed by flight attendants and we take issue with that and we say that one can t point to one s own delinquent conduct, if you like, without being pejorative about that, but one can t not abide by an agreement provision and then sometime later turn around and point to the fact that you haven't abided by it and say, Well, look, that really justifies or rationalises our conduct and exculpates us, because one is relying on one s own erroneous conduct, one s own mistaken interpretation of the provision to provide maybe comfort to one in the submission that that s the way the provision ought to be interpreted and we say that that s not right and we point to the decision of Marshall J in that ASU case back in 1998 that deals with this precise point.
PN1072
That was a case where the parties there tried to point to the way they applied a particular agreement to somehow or other justify and excuse and rationalise the approach they d taken to the interpretation of that provision in the agreement and Marshall J rejected that and said, No, that can t be relied upon. You can t have regard to the conduct of the parties subsequent to the making of the award and he referred to earlier authority, longstanding authority, that supported that proposition.
PN1073
We would say that s precisely the position that we have here. Qantas is saying, Well, look, it s all very well to have a provision like that. We haven't applied it that way and what we can do to support our contention about the way the provision ought to be interpreted is point to our own conduct and we say that that s unsatisfactory and it s in the end the wrong approach and, indeed, it s contrary to the authority that we've referred to.
PN1074
As I ve indicated, the decision of Marshall J can be harked back to earlier longstanding decisions for that principle. So in the absence of an ability to call in aid the Golden Cockerel approach and say that the provision was somehow ambiguous or uncertain where the clear words used cover what we've described as what ought to be expected to be covered by the clause.
PN1075
One can t as a fall-back position, as it were, refer to your own conduct and say, Well, we never treated it that way, therefore, that must be the appropriate way the provision is interpreted.
PN1076
THE COMMISSIONER: I think there s an and I think it s the Wanneroo v French where there s a view that says, Look, this isn't a rigid approach, but one has to be very cautious about looking at the way that the parties might have applied or interpreted the particular provisions. You approach it with a considerable degree of caution, but it may be that it is a relevant consideration. I suppose, though, you have to first get over the hurdle of there being uncertainty or ambiguity to get into that area perhaps.
PN1077
MR NOLAN: That's our precise point that you've really got to get over that initial hurdle and we say that that s a hurdle that just can t be overcome; simply because the clause in the agreement is so clear and straightforward. You can t say that the expression launder excludes laundry excludes laundering of the garments. It simply doesn't make sense. It s saying that black is white and we say that s a fundamental obstacle to the next step. One can t go past that, so one can t say, Well, yes, launder shouldn't be interpreted to mean launder, so what we've got to do then is point to our own conduct and say, Because we haven't interpreted or we haven't approached it by reference to what everybody would understand the word launder to mean, we can rely on our own conduct and make a virtue of our own erroneous understanding and application of the award, and we say that can t be countenanced at all because of the authority that we've referred you to.
PN1078
So it s a very simple and straightforward point, in our submission and it really is the case that any employee could come forward and make an application to a court alleging a breach of the agreement and the court couldn't turn around and say to the employee concerned, Well, you can t vindicate your rights under the agreement here because somebody said to me that the employer never applied the clause in this way, therefore, thank you very much. I mean, that s just simply not the way that these things operate.
PN1079
The court will take an objective view of the obligation that arises under the agreement and in doing so, of course, it will be constrained by those principles to which we referred you and it will make a decision accordingly. So we say it s a simple proposition. It s a simple proposition that lends itself to, we would suggest, only one outcome and that s the outcome that we'd urge the Commission to adopt.
PN1080
THE COMMISSIONER: Just looking at some of these definitions, I think it s fairly clear from looking at a number of different dictionaries, launder means to wash and iron.
PN1081
MR NOLAN: Yes.
PN1082
THE COMMISSIONER: That seems to be consistent from a number. I ve tended to go with the online Macquarie Dictionary because that s the easiest one that I can access. So what does wash mean? Wash seems to be defined as:
PN1083
To apply water or some other liquid; (2) for the purpose of cleansing.
PN1084
MR NOLAN: And some other liquid could be a dry cleaning fluid.
PN1085
THE COMMISSIONER: That's the point you're making, is it?
PN1086
MR NOLAN: Yes.
PN1087
THE COMMISSIONER: So we re not restricted to water?
PN1088
MR NOLAN: No.
PN1089
THE COMMISSIONER: No? Because that would be a quite perverse outcome, wouldn't it, in fact that the laundering was confined to only the washing and not the dry cleaning?
PN1090
MR NOLAN: That's right. And, of course, it would be at odds with the ‑ ‑ ‑
PN1091
THE COMMISSIONER: But we can t look at the practice. We have to look at the words, you see.
PN1092
MR NOLAN: I know, but the ordinary understanding of launder embraces all these cleaning technologies.
PN1093
THE COMMISSIONER: Does it embrace the dry cleaning, does it?
PN1094
MR NOLAN: It must, because as you've said yourself, it involves the application of a liquid not just water.
PN1095
THE COMMISSIONER: Water or some other liquid?
PN1096
MR NOLAN: Yes, some other liquid, dry cleaning fluid. It s put through a process that s akin to a washing process, but utilising dry cleaning fluid and not water. It s as simple as that, we would submit.
PN1097
THE COMMISSIONER: All right. So this is the concept of dry cleaning being a subset of launder?
PN1098
MR NOLAN: Yes. That's not too extravagant a proposition, really, because when one talks about, you know, laundering uniforms and so on, there s nothing startling about the proposition that they could be either dry cleaned or in appropriate circumstances washed and ironed.
PN1099
THE COMMISSIONER: So if we just go back to the golden rules, as they're now referred to.
PN1100
MR NOLAN: I'm sure some of the justices of the Federal Court might get their noses out of joint if they believe their wise words have been supplanted by the Golden Cockerel case, but there you go.
PN1101
THE COMMISSIONER: Yes, I would have thought that this was an attempt to distil the wise words of the various Federal Court decisions ‑ ‑ ‑
PN1102
MR NOLAN: It s often a risky task.
PN1103
THE COMMISSIONER: I wasn't on the Bench, so I can t take the blame for it. We have this question of establishing whether the words can be just given their plain and ordinary meaning and you say that s all you need do here and you don t need to go any further.
PN1104
MR NOLAN: We re saying if these words they really yield a straightforward meaning.
PN1105
THE COMMISSIONER: In rule 3 though when it talks about:
PN1106
Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
PN1107
What would the surrounding circumstances be?
PN1108
MR NOLAN: Well, frankly, I don't know. If the surrounding circumstances were such that they suggested that the ordinary meaning of the term used in the clause should be something or other departed from dramatically, one would question whether or not it s an appropriate surrounding circumstance and in fact the only surrounding circumstance we have here, frankly, is the position advanced by Qantas that, Well, we ve never done it, therefore, that justifies the approach we've taken to the interpretation of the clause.
PN1109
THE COMMISSIONER: Would it be appropriate then to decide whether there is an in trying to decide whether the plain and ordinary meaning can be given to these words or not, one can have regard for surrounding circumstances. Surrounding circumstances might include the history of the actual application of the terms.
PN1110
MR NOLAN: But if there was some term of art you might do that because there might be an industry expression that had something to do with - you know, think about the engineering areas in Qantas and there d be particular expressions to do with aspects of the engineering function, well that might be a relevant surrounding circumstances to inform the way the agreement would be approached, but here we re talking about, you know, really bread and butter concepts of laundering.
PN1111
All one needs to do, in our submission, to really appreciate the limitations of what s entailed in this exercise is to look at paragraph 8 of the respondent s submissions where they're really making heavy weather of the elements they're trying to tease out to suggest ambiguity or uncertainty and starting with 8(a) where they say:
PN1112
It s unclear whether the addition of the words by Qantas/QCCA have, or are intended to have, any work to do.
PN1113
But on one view they require Qantas QCCA to perform launder services. If that s the best point they ve got in their catalogue of points, it really doesn't take us very far. When you go further down and look at point (b) and they talk about the meaning of launder is to wash or iron and they say:
PN1114
It s not in dispute that the crew uniforms have always included items that required dry cleaning because they're not washable, for example, wool jacket, trousers and skirt. In those circumstances, the word launder in the provisions cannot mean wash and iron.
PN1115
Again, that s just really - pars these expressions to the point of, you know, breaking point, really, because the fact of the matter is the word itself launder entails washing and ironing and also embraces, as we would suggest, dry cleaning. We just don t think that that assists them at all. It says:
PN1116
The word launder may in itself have a usual accepted meaning. The phrase uniforms must be laundered cannot have the same meaning and does not mean that uniforms must be washed and ironed.
PN1117
That's if you take a particularly narrow view of launder which is completely inconsistent with the way the phrase has been approached in the agreement. So it really doesn't take the argument any further in terms of the Golden Cockerel exercise. That goes on with the other sub-parts of clause 8 of the respondent s submissions, we would say. So we don t believe that they really do get over that initial hurdle. Then further down in the submissions they end up saying some, with respect, quite unreal things, for example, in (e) they say:
PN1118
Although the provisions require the respondents to launder uniforms, they are silent as to when or how often this must be done.
PN1119
On one view the requirement could be satisfied if the uniforms were laundered at the respondent s expense once, but I mean this is just fanciful. I mean, if the employees said, Well, we re only going to launder our uniforms once, you know ‑ ‑ ‑
PN1120
THE COMMISSIONER: That seems to emerge from the witness evidence.
PN1121
MR NOLAN: I d suggest that there is a ‑ ‑ ‑
PN1122
THE COMMISSIONER: Mr O Connor when he talks about the frequent of the dry cleaning and in paragraph 28:
PN1123
If the dry cleaning costs
PN1124
he keeps calling it dry cleaning, but let s just say laundry costs because now we re talking about the addition of the shirts and shell tops and anything else being washed.
PN1125
MR NOLAN: Yes.
PN1126
THE COMMISSIONER: If they were to significantly increase, Qantas would need to review this, that is the frequency with which because there isn't any obligation here.
PN1127
MR NOLAN: No.
PN1128
THE COMMISSIONER: There s no limitation. Presumably, some flight attendants put in, I don't know, 20 dry cleaning things a year and others do none. I don't know.
PN1129
MR NOLAN: But there s no suggestion, really. I mean, that s all speculation. There s no real suggestion that flight attendants are somehow or other over servicing the dry cleaning service; not at all, because all they can do is put their uniforms in. They can t put their private clothing through the system.
PN1130
THE COMMISSIONER: It s a question of how often you do that. That's what s been raised.
PN1131
MR NOLAN: But that s a problem with or without shirts and washable items, surely. I mean ‑ ‑ ‑
PN1132
THE COMMISSIONER: But doesn't that give rise to a potential dilemma with the words just taken on their face? Doesn t that really say, Here s a set of words which really could mean that you have unlimited, number of times you can have your ‑ ‑ ‑
PN1133
MR NOLAN: But those words could apply to the clause as it exists, even accepting Qantas interpretation. So that s not something you need to be distracted by in this exercise. The fact of the matter is there s no evidence about over utilisation of the dry cleaning resource. If there is, that s something for a different argument on another day.
PN1134
THE COMMISSIONER: But I thought it might be a factor which you could say gives rise to an uncertainty about the words. Is this meant to be something that had no limitation to it?
PN1135
MR NOLAN: It has no numerical limitation, but the limitation surely is one that commonsense would suggest is dictated by the ordinary cycle of laundering one s clothes. I mean, one doesn't for practice go and get one s clothes laundered every day. I suppose if you were a multimillionaire or particularly punctilious about your attire, into which group I don t fall, I have to say. There might be some extreme example, but that s really ‑ ‑ ‑
PN1136
THE COMMISSIONER: I'm just talking about a challenge to these words and saying, Well, look, on their face there s some problem with this because it really just it s an open ended proposition.
PN1137
MR NOLAN: But that s a different problem. That's a problem, if it is a problem and we would suggest it s a hypothetical and conjectural problem that has no basis in reality with respect, it s a problem that exists whether or not you've got dry cleanable or washable clothes contained within the category of the clothing that needs to be laundered. In other words, it s a problem that, with respect, you don t need to be concerned about within this exercise because there s no real evidence about, you know, a massive proliferation of abusive laundry practices. I mean, it s just not an issue.
PN1138
What we re talking about here is whether or not that expression in the agreement extends to the non-dry cleanable laundry items. That's all it s about. It s a very narrow consideration and it may well be that equally we could speculate that, you know, the price of dry cleaning liquid can go through the roof tomorrow and Qantas would be stuck with a bigger bill. Who knows? I mean, that s something that we re not ‑ ‑ ‑
PN1139
THE COMMISSIONER: Maybe they wouldn't be because they could just arbitrarily constrain the number of times that you could do it. There s been no evidence of ‑ ‑ ‑
PN1140
MR NOLAN: Yes, but at the moment they can t; under the agreement it s not an issue. It s a purely hypothetical distraction, with respect. It s got nothing to do with the words that we re looking at in this exercise. It just simply doesn't arise.
PN1141
THE COMMISSIONER: But doesn't it sort of point to the inadequacy of those words?
PN1142
MR NOLAN: But presumably, there are lots of clauses in lots of awards if, you know, you hold them up to the light long enough, you'll find inadequacies in, but it would only be an inadequacy if there was a real practical problem that was highlighted or an anomaly that was highlighted by what was happening under the agreement. There s none of that here, none of that at all. The only thing that can be said is that if Qantas was obliged to pay for the allegation of shirts and those other items, it would cost them more money. Well, it would, but I think we've already discovered this afternoon one thing that came out of some of the questions Mr Baarini asked is that it looks like, it seems like, there s been no increase in the dry cleaning costs. We've got no real explanation for that but ‑ ‑ ‑
PN1143
THE COMMISSIONER: There could have been a reduction in the
PN1144
number of employees.
PN1145
MR NOLAN: That's right. There could be any number. They could have negotiated a better deal. I mean, these things happen all the time. We just don't know. But it s not part of this exercise for us to get distracted by that sort of consideration. It simply just doesn't arise.
PN1146
THE COMMISSIONER: The questions of potential impracticality or inadequacy of the words, not relevant for consideration ‑ ‑ ‑
PN1147
MR NOLAN: No, don t arise.
PN1148
THE COMMISSIONER: Just look at the words ‑ ‑ ‑
PN1149
MR NOLAN: Don t arise.
PN1150
THE COMMISSIONER: ‑ ‑ ‑ plain, unambiguous, can t see a problem with them, no uncertainty created ‑ ‑ ‑
PN1151
MR NOLAN: That's exactly right.
PN1152
THE COMMISSIONER: And so it must be that the interpretation has to be that the obligation is on Qantas ‑ ‑ ‑
PN1153
MR NOLAN: That's right.
PN1154
THE COMMISSIONER: To launder uniforms, all items thereof.
PN1155
MR NOLAN: That's right. That's our submission. Thank you.
PN1156
THE COMMISSIONER: Thank you. Mr Baarini?
PN1157
MR BAARINI: Thank you, Commissioner. We also rely on the submissions that have been filed in this hearing, TWU 1, TWU 2, without needing to rehash those, I might just want to add a few things in addition to what s already been put this afternoon in light of your questions, Commissioner. The first thing is that the actual words in an agreement are determinative. The decision of the TWU v Linfox [2012] FWAFB makes that very clear:
PN1158
The actual words of an agreement were determinative.
PN1159
Why I say that at the outset is this that Mr O Connor conceded in cross‑examination that whilst the practice of determining what goes in and what goes the dry clean only items might be a changing feast, the words themselves do not change. So the words are paramount. They are the ones that we've got to determine today as to what they mean and whether there is any ambiguity or uncertainty in the words of the clause 17 or clause 20 of part 2.
PN1160
You might have recognised, Commissioner, that I spent a bit of time cross‑examining Mr O Connor in relation to the manual, policies, procedures, you know, which items of the Style On Q were dry clean only, which ones came in, which one came out. I spent a bit of time in relation to the serving jacket and how it came to be out, in and then out again. Now, those things are not because of ambiguity in relation to the clause or the words, Uniforms must be laundered at the company s expense. They are questions to illustrate that those sort of ambiguities are to do with the operational implementation of those words not the words themselves.
PN1161
I haven't got the transcript before me, but I think if you read Mr O Connor s testimony under cross‑examination, he conceded that whatever changes were occurring were occurring based on the choice of the fabric, the choice of the uniform style, the choice as to a number of variables that make up the uniform that is adopted by the company. One would not expect, and should not expect, that an enterprise agreement would stipulate each and every variable when it comes to uniforms. That's why there are policies and procedures and Mr O Connor did say that those policies and procedures and manuals are not designed to override the actual words of the enterprise agreement. They are there to assist.
PN1162
Now, unfortunately, it appeared to me at least in cross‑examination that there seems to be some drawbacks in relation to the adequacy, if you like, of the manual and the policies and procedures and how relevant they are and how updated and the like. I guess the point that I make is that whilst there are controversies in relation to the relevance and the status of those documents, ultimately that controversy is in relation to those documents and how they apply in the workplace.
PN1163
What s not in controversy is, in our submission, what the words actually mean and do and: (1) they create an obligation on the company to provide uniforms because let s not forget that those words uniforms must be laundered at the company s expense do not make up just clause 17. They are part of what is above it in those two paragraphs under the heading Uniforms. They create an obligation that the company shall provide employees with uniforms:
PN1164
Employees have an obligation to wear those uniforms. Employees can replace them from time to time as required as a result of fair wear and tear whilst on duty. The employee must wear their uniform at all times whilst on duty.
PN1165
Ms McKenzie was, in my view, trying to be pretty technical about, there s an obligation to wear their uniform at all times, therefore, if you don t then that doesn't qualify you to get the item dry cleaned at the company s expense. The point that we make is that the employee must wear their uniform at all times when they are required to do so. So:
PN1166
They must wear their uniform at all times whilst on duty, must keep the uniform in good order and condition and must, at his or her own cost, replace the uniform if such replacement becomes necessary otherwise than as a result of fair wear and tear.
PN1167
So there s some consideration as to what obligation there exists on an employee in financial terms as to what they do in replacing uniforms if it becomes necessary. So there s an element of cost introduced at clause 17. Then in the next paragraph it talks about:
PN1168
Uniforms remain the property of the company at all times and must be returned by the employee on termination of his or her employment.
PN1169
These are, if you like, statements of fact. They are statements that stipulate what the company s obligations are in relation to an employee for the purposes of providing them with uniforms, what the obligation is for the employee when receiving those uniforms, what the obligation is to in wearing those uniforms and maintaining them in good order and condition and what cost there is for them in replacing those uniforms when required, except for fair wear and tear, but ultimately there s a statement that says that:
PN1170
Those uniforms remain the property of the company at all times and must be returned by the employee on termination of his or her employment.
PN1171
That paragraph isn't put in there as a matter of general background context. These are positive obligations that are created on both parties in this enterprise agreement in relation to an item that is given by an employer to an employee. That's the general obligation, vis- -vis, mutual relationship, mutual obligation and responsibility in relation to it and in that first paragraph, it s up there front and centre:
PN1172
There shall be a cost for the replacement that s to be borne by the employee.
PN1173
The flipside of that is if I'm an employee and I'm given this uniform and I ve got to maintain it and I ve got to wear it and I ve got to keep it in good order and condition, that the flipside is that if I'm expected to maintain it in good order and condition and I ve got to replace it at my own cost if it becomes necessary - the flipside to that obligation is the employer s obligation to launder the uniforms at its expense.
PN1174
We know from Mr O Connor s evidence that that particular clause dates back to enterprise agreements before he commenced working for the company. We don't know from today s evidence how this particular provision came to be formulated other than the fact that there might be some historical reference to the awards which first provided for this obligation of uniforms having to be laundered at the company s expense, but the exact words as to how they're put in those two or three paragraphs in clause 17 and in clause 20, really, no one has given evidence today as to how they all came about.
PN1175
But putting that aside, the reality of the situation is that it doesn't matter whether those words are seen to be inadequate or impractical. The plain meaning of those words are what they are because if we were to go and look with a microscope as to what is fair wear and tear, what is at his or her own cost, when is uniform to be replaced, when is something necessary, you could apply that sort of analysis for the first paragraph in clause 17 and you'd be going around in circles trying to find answers to these questions.
PN1176
The point that I make is this that those particular obligations in clause 17 in the first paragraph are clear obligations on both the employer and the employee as it relates to the provision of uniforms and consequently, that particular sentence further down in paragraph 3 which says, Uniforms must be laundered at the company s expense, is plain and simple. It creates a simple obligation on the company to launder uniforms at its expense.
PN1177
Sure, it doesn't define which uniforms. It doesn't provide limitations as to the number of times. It doesn't provide frequency. It doesn't provide the cost. It doesn't provide all of the mechanical things that one would expect to be provided for in operating procedures and manuals. But that s not to say that that controversy can t exist. In fact, it does exist and much of the cross‑examination today shows that, frankly, the controversy that exists in those policies and procedures as to what is to be laundered and at whose costs exists in those policies and procedures.
PN1178
What doesn't exist, in my view, is any ambiguity that there is a clear and positive obligation on the company to launder at its expense. If the company tries to create uncertainty in those words by saying, What is laundering? What isn't laundering? Which uniforms? These uniforms? These old uniforms? These new uniforms, the Martin Grant uniforms? Which items? the point that we make is that the clause is pretty clear that there is an obligation on the company to launder uniforms. What the company has tried to do through past practice, if you like, which in my view it has had the benefit of to the detriment of the employees they ve had the benefit of past practice to strip away that obligation in clause 17 by creating policies and procedures at their own terms and on their own whim.
PN1179
They determine which items are to be laundered. They determine what their uniform will look like. They determine which laundry agent is the preferred supplier. They tell, on Mr O Connor s evidence today, the supplier which items to accept for dry clean only. They determine what labels are to go to each of those items of uniform. So, really, when we re talking about an obligation on the employer in clause 17 and clause 20, they have sought to strip away and narrow their obligation, which is evident in clause 17 and clause 20, by virtue of external documents outside the enterprise agreement, Commissioner.
PN1180
They have sought to create uncertainty. They have sought to define and really take employees down a path that is limited to what the company wants and the company wants to limit its overall annual cost to $500,000, as it did back in 1988. This is a cost exercise, no more and no less. The company wants to limit its cost obligations that have been created by virtue of clause 17 and clause 20 of the agreement.
PN1181
Every obligation that is imposed on an employer in an enterprise agreement has a cost consequence to it, Commissioner. I'm not surprised if Qantas would obviously take the benefit of trying to limit what uniforms it launders at its own expense and it does so by virtue of this cabin manual via policies and procedures and the like and it says, as Ms McKenna said, I really don t have any option. As much as I hate it well, she didn't use the word hate as much as I don t want to, I ve got issues with it, I have to comply. I'm a good employee. I comply with all company policies and procedures, but that doesn't make it right.
PN1182
So the point that we make is that the company is and does and should from day 1 have an obligation to launder uniforms at its expense because in the hypothetical that I raised under cross‑examination, which you picked up on, Commissioner, if the fabric that was chosen was all machine washable, well frankly, under their policies and procedures they could have all uniforms washed by the employee at their own cost. But that s a policy and procedure that they have created to avoid responsibility and its obligations under clause 17 and clause 20.
PN1183
The decision that everyone has been referring to in the Golden Cockerel case provides a summary of the principles, but bear in mind that in that decision the Full Bench was dealing with a consideration of a range of materials prepared by the company and the union during the period leading to the approval of the agreement which was by valid majority of the employees. So the principles that were enunciated and applied in that case in relation to the extrinsic material, which included emails between the parties leading up to the approval of the agreement by a valid majority of employees, the Full Bench found that:
PN1184
The emails in that case are of no assistance in resolving the competing constructions and do not provide any basis for the suggestion that the provisions of the agreement at issue are ambiguous.
PN1185
The emails in that case disclosed no more than that the parties did not agree to include the employee protection clause sought by the applicant. In our case before you today, Commissioner, there s been no evidence brought by Qantas that would suggest that there is any ambiguity in relation to the obligation that s created by virtue of clause 17 and clause 20. Mr Simon Brown s evidence, with respect, should be given as little weight as possible. He was not involved in any inquiry of the 23 boxes that he instructed Ashurst to review. The material that he has attached to his statement, frankly, is material that s provided without any context as to how it all is recorded in the history of time.
PN1186
Mr Brown, frankly, just provided a statement about very little that would be of assistance to the Commission in determining what the words of that clause actually mean. If there was any purpose in what attachments were included in Mr Brown s statement, it was to suggest and invite the Commission to find that there is some ambiguity in what those words mean by virtue of correspondence going to parties, including the ACTU.
PN1187
The point that I d make is this that those documents that are attached to Mr Brown s statement should be given as little weight as possible. They are nothing more than what is contained in them and Mr Brown has no recollection and has no cause to be involved in any of those correspondence, given that he started working for the company in 2011 as an IR manager.
PN1188
In relation to Mr O Connor, again Mr O Connor was involved in the last or the current enterprise agreement. Again, he accepted under cross‑examination that what s contained in the current enterprise agreement was simply transplanted, if you like, from previous enterprise agreements. He could provide no context as to the negotiations or how those provisions were constructed. But, frankly, I thought he conceded under cross‑examination that what was being done by the company by virtue of the policy and procedures in the manual was not something that was done inside the provisions of the enterprise agreement. The power for him and the company to be able to change what is dry cleanable and what is not dry cleanable and what is dry cleanable only was not by virtue of the enterprise agreement, but by virtue of decisions made by the company for the company in consideration of their cost.
PN1189
When he was pressed about the costs factor and what was reasonable and unreasonable, Mr O Connor in his that, I think, said by virtue of the fact that he felt the costs were not unreasonable, that they didn't need to regulate the use of the uniforms. That, in my view, is a fairly important point because if the company is seeking to throw doubt into what those words actually mean, they only throw doubt on what they actually mean because they're being challenged before you today about them because they have been very happy for the last 20 years gaining the benefit of the provisions of that enterprise agreement on their terms because they have been able to limit their exposure for uniform laundering costs to about $500,000 a year since 1988.
PN1190
By virtue of the fact that there is a dispute before you brought by the TWU and joined, I guess, by the FAAA only at the instigation of the TWU s challenge of the company s position, I guess the point that I d make is this that the company has only seen fit to challenge and throw doubt in relation to its obligations because they feel that there is a threat about what the costs exposure will be and what it will mean for them in relation to what items should be dry cleaned.
PN1191
If this dispute was not before you today, the company wouldn't be feeling the pinch as they are today in relation to what the cost implications are. So, in our submission, Commissioner, Ms McKenna has given evidence about the cost burden and the time burden that she feels as an employee, a longstanding, loyal employee of the company, what it means to her. It s a personal experience. It s a personal record of her own practices arising from the practices and procedures that the company has put in place. She s not happy with it. She s here to express that and there would be many more examples of it that could have been and brought before the Commission today.
PN1192
The point that we make is just because the parties have conducted themselves in a way, and bearing in mind that TWU only became a party to this agreement after the negotiations, the fact that the FAAA and the company has conducted themselves in a way over the years that has provided some benefit to the company by moving the cost or shifting, in my view, the costs of laundering to the employees, as has been recorded in some of the more recent manuals that I took Mr O Connor to, that conduct does not reflect, in my submission, what the plain and ordinary meaning of those words are.
PN1193
What it reflects, that conduct, is an arrangement or an understanding, if you like, between the parties as to what to do with the uniforms, what s to be accepted and what s not to be accepted. The fact that the FAAA or an employee did not challenge the company in a formal way over the years should not preclude the TWU or its members today being here before you challenging the authority on which the company decides to pick and choose which uniforms should be dry cleaned at its expense.
PN1194
If the company wants to regulate and determine its ability under the clause, the clause should read more favourably to the company by including additional words. It should say, Uniforms must be laundered at the company s expense in accordance with policy that s reviewed from time to time. There should be some mechanism by which the company can allow themselves a way out, if you like, of its obligation, but there is no reference to policies. There s no reference to a manual. There s no reference to procedures. Simply, you've got Mr O Connor today accepting and conceding that what he s done and what the company has been doing all along is not by virtue of what s contained in the enterprise agreement, but by virtue of these policies and procedures that have been created, reviewed, rehashed, really not with consultation of the employees, not in consultation with the TWU, not in consultation with the FAAA as far as we re aware, but at their own determination and consideration of what their costs are going to be and when it suits them.
PN1195
What we say is if you want to do that, you've got to find a way in the enterprise agreement. Don t do it because you think you've got management prerogative because the obligation is counter that. You've got to do everything that s consistent with your obligation that uniforms must be laundered at the company s expense. What the company has done is put that provision aside and thought, Well, we'll pick and choose. We'll choose the fabric. In fact, Mr O Connor in paragraph 11 of his statement says:
PN1196
During the development of the Martin Grant uniform, considerable evidence and thought was given to introducing a range of uniform items which would allow cabin crew the choice of which style of uniform to wear. There was also a focus during the development of the uniform on using good quality machine washable fabrics wherever possible for the convenience of cabin crew.
PN1197
That's not for the convenience of cabin crew. That's for the convenience of the pockets of Qantas because the more uniforms they can get fabrics which were machine washable fabrics, the less the company had to foot the bill for items that are being washed through their preferred supplier because Qantas had to foot the bill. So this was a cost shifting exercise, Commissioner, outside the terms of the enterprise agreement which clearly provide that uniforms must be laundered at the company s expense.
PN1198
If in fact Mr O Connor felt that the cost - at paragraph 28 of the use of dry cleaning by cabin crew was significant they would be regulated. They would be telling the employees what uniforms they needed to dry clean, when they needed to dry clean it, how many times they needed to dry clean, but the fact that it suited their budget and bottom line, they ve kept quiet on it because it suited them, but where it doesn't suit them, now they want to throw doubt as to what their obligations are under clause 17.
PN1199
They're having it both ways. They ve been having to keep quiet on usage. For all we know, $500,000 annual cost could be used by a small group of people, the same group of employees who regularly use it or it could be a handful. We just don't know. The point that I'm making is because the bottom line suits the company, they ve been happy not to delve into the uncertainties in relation to frequency, number and items. They ve been happy to sit quiet because it meets their budget bottom line.
PN1200
I think Mr O Connor in a roundabout way was conceding that obviously the cost was a significant consideration and the fact that there would be another million dollars of significant additional costs for Qantas potentially under this obligation created by clause 17, meant that they were obviously going to stand by their practice that they ve had for 20-odd years. Golden Cockerel in its principles says, Commissioner, this at paragraph sorry, Commissioner, let me get this right at paragraph 30 of that decision:
PN1201
Regard may therefore be had to evidence of surrounding circumstances before the existence of an ambiguity and agreement is identified as an aid to interpreting the agreement for the purposes of determining whether an ambiguity exists. If thereafter, ambiguity is not identified, extrinsic material cannot be used to contradict the language of the instrument.
PN1202
So what really this decision is saying is that you can use extrinsic material to identify to use it as an aid to identify whether there s an ambiguity that exists and what we re saying today, in my submission, Commissioner, is there is no extrinsic material before you that s been adduced today, either in documents or by evidence of the two witnesses of the company, that would throw any doubt as to the clear obligations created in the clause.
PN1203
Sure, there might be some impracticalities, Commissioner, that you ve identified, some inadequacies, but those impracticalities or inadequacies are not to be used to take away from the inherent obligation that s created by virtue of those words uniforms must be laundered at the company s expense and if you read up, it creates further obligations on the company and the employee in relation to the provision of those uniforms.
PN1204
So if there is no ambiguity that s been found as a result of extrinsic material then the actual words become determinative. If the Commission was to find that there was ambiguity or uncertainty in uniforms must be laundered at the company s expense as to what they actually mean, I think as Mr O Connor had difficulty explaining, he didn't know whether laundering was a subset of dry cleaning or dry cleaning was a subset of laundering.
PN1205
The point that I d make is this that if a company manager was unsure or uncertain as to what the terms of the enterprise agreement might mean for the purposes of clause 17 and clause 20, that s no guide for the Commission in determining whether there is ambiguity in the clause. (2) if there was any ambiguity in Mr O Connor s evidence as to what the definition might be, despite there being no definitions in the enterprise agreement about those matters, the fact that the company has seen fit to determine in its own way over the years through its Style On Q and the Cabin Crew Manual and the like, they have determined what is clear and what is not clear.
PN1206
I spent some time today trying to identify even their own manuals and policies are inconsistent as to how they are to be applied, which items are covered and which are not. There were items that were identified as dry clean only. There were items that were identified, like aprons and shirts, that are not to be dry cleaned and there are items that are missing. There are items that are missing in those documents as to what occurs with this items for the purposes of either being laundered by the company or the employee.
PN1207
Again, the point that I d make is the fact that there is uncertainty and ambiguity in those documents relating to the way that the uniforms are to be laundered and what items are to be laundered does not mean, in my submission, that the words that are contained in clause 17 of the enterprise agreement or clause 20 are therefore ambiguous or uncertain. The uncertainty arises because the company has seen fit to create the uncertainty by virtue of which fabrics they choose when they choose the uniforms, what uniforms they choose and the like and at what cost.
PN1208
The uncertainty doesn't exist by virtue of the clause that is before us for you to determine, Commissioner. So my submission is that if an employee and an employer were negotiating this agreement and looking at that particular clause, Uniforms must be laundered at the company s expense, that means what it says.
PN1209
If the company seeks to say that there is some what does laundering actually mean, you know, does it mean to wash? Does it mean to dry clean? Does it mean something else? Well, sure but agreements aren t to be read just in the company s way because the company now sees fit to throw some doubt as to what the words might mean. In fact, if you look at the policies and procedures attached to most of Mr O Connor s statement, the word laundry, laundered is used more so than dry clean.
PN1210
If the company were so focused on the company s obligation being limited to dry clean then first and foremost, the enterprise agreement should have been limited to, Uniforms must be dry cleaned at the company s expense, or the policies and procedures themselves that work outside the enterprise agreement, but are meant to be a supplement to the operational functions and administration of the enterprise agreement should itself also make reference to the word dry clean at the company s expense . In fact, a lot of the time laundered is the word that s used and even in communications by email correspondence from Mr Nick O Connor to the FAAA and others, laundry is the word that s being used and understandably so.
PN1211
We re talking about an industrial environment not a technical environment, not a scientific environment, not an environment that should be read or received in any context other than being a robust industrial environment where people are paid to do a job and the enterprise agreement is meant to reflect in bare terms, if you like, Commissioner, the respective rights and responsibilities of the parties and we say clause 17, without qualification, without limitation sure, there might be a lot of question that go unanswered arising from it, Commissioner, but that s not the way to read the agreement. The way you read the agreement is: does it provide an obligation on the company to launder uniforms at the company s expense and the answer is yes .
PN1212
The fact that there are questions arising from that as to how it s done, when it s done, what items, well frankly, that s a matter for the company to try to work through subsequent to the enterprise agreement or, at the very least, it should have turned its mind to its obligations created by virtue of that clause at the time of negotiating the enterprise agreement as to what items should be dry cleaned, not laundered - should be dry cleaned at the company s expense.
PN1213
The only need to look back at the serving jacket to trace back that even back then, the FAAA made a claim for a serving jacket that was and it was brought back in and then subsequently taken out. So the point that we d make is that, frankly, if you read this and read this plainly and simply uniforms must be laundered at the company s expense there is no qualification to it, Commissioner.
PN1214
THE COMMISSIONER: Thank you. On that point, though, and I touched upon this with Mr Nolan, the absence of any other provisions relating to the frequency or any other restriction or application of the laundering might it be the case that there s something of a Pyrrhic victory in being successful here? I think I put this to your witness, too. It could be on two bases. One is: yes, you're right. So now Qantas has to launder the shirts and shell tops as well and it sees the costs starting to increase dramatically, so it just says, We re only going to do it for X number of times per month, year, whatever, it starts to limit it. There doesn't seem to be any reason why it couldn't do that. Your submissions seem to suggest that that s quite possible. So it would seem to me then we might just have a case of - you'd be right, but you might just wind up with less of a benefit. That's on one basis.
PN1215
MR BAARINI: Yes.
PN1216
THE COMMISSIONER: The other basis is, of course, this time next year Qantas says, All this has been a dreadful experience for us. We re going to move to an allowance, as we have in other parts of the operation. The uniform allowance will be struck as part of the EBA and particularly given the number of items for cabin crew that require dry cleaning, it may well be that whatever figure is ultimately agreed on for an allowance means that there are people who are actually worse off at the end of the day, getting the allowance, having to pay for their own dry cleaning.
PN1217
MR BAARINI: I guess the point that we d make, Commissioner, is this that whatever the practical realities might arise will be something that both the company and the unions will have to tackle arising from any decision of this dispute. Secondly, the fact that there are no qualifications, in my submission, as to uniforms must be laundered at the company s expense means that the company is unable to, as it currently stands and, of course, it will be subject to further negotiations at the next round of EBA discussions that the union will be at, but as it currently stands there is a positive obligation on the company to launder uniforms.
PN1218
We don't believe that the company is in a position to be able to limit which uniforms and when. There is no power, in my submission, arising from the enterprise agreement for the company to water down its obligations to launder uniforms full stop.
PN1219
THE COMMISSIONER: What if a person puts their trousers in and the company says, Sorry, but we re not doing them anymore this month. You've exceeded your monthly allocation of laundering.
PN1220
MR BAARINI: We would challenge that on the basis we don't know where the allocations come from. I mean, there ll be controversy around that, Commissioner. That's the point that I make, that operationally ‑ ‑ ‑
PN1221
THE COMMISSIONER: You open the door here to all possibilities. That's all I'm suggesting.
PN1222
MR BAARINI: Yes. And I guess in a sense we re pleased that this enterprise agreement is going to be renegotiated fairly soon, but at the same time this application is brought before you to get some acceptance from the company that they have that positive obligation arising from clause 17 where they like it or not. That's been really - I know it s a matter of principle, but that s really been the issue at the heart of this because in a sense the issue about uniforms being laundered, as Ms McKenna has given evidence about, is that there s a cost imposition that employees are feeling that they re having to pay out of their own pocket, despite the allowances being paid, as Mr O Connor has described, there s controversy about what those allowances actually mean and how they apply.
PN1223
The point that we d make is that no one is in this to make money out of it from the employee or the members perspective, Commissioner. The employees are certainly not trying to make money out of this. What they're trying to do is not lose money because as Ms McKenna has said, she spends ‑ ‑ ‑
PN1224
THE COMMISSIONER: It s the very point I make. Might you achieve that outcome?
PN1225
MR BAARINI: We've got to live with the practical realities of whatever outcome arises, Commissioner, in due course. The point that we d make is we want to know that what we re negotiating in future enterprise agreements well, I won t say that. What we want to know is does clause 17 and clause 20 mean what we and our members believe them to be.
PN1226
THE COMMISSIONER: All right, thank you. Ms McKenzie?
PN1227
MR BAARINI: Thank you, Commissioner.
PN1228
THE COMMISSIONER: Ms McKenzie?
PN1229
MS McKENZIE: Yes, thank you, Commissioner. Commissioner, the provisions that relate to uniforms, which are contained in EBA 9 are of very long standing. The provision clause 17 in part 1 in particular, clause 20, which came in part 2, came at a later point when the additional employer Qantas QF Cabin Crew was established and I think that extra part went in in relation to EBA 8. But EBA 9 and the provision in relation to the uniforms, in particular, is of long standing; such long standing in fact that the proposition that you're really being invited to accept here is that Qantas are a very reputable employer.
PN1230
Qantas has been in blatant breach of its EBA obligations or award obligations for some 40 years, throughout nine enterprise agreements and at least three predecessor awards. The words have been unchanged. They ve been adopted and replicated in successive industrial instruments. Throughout all of that time, Qantas has been in blatant breach of its obligations. That's the proposition that you're being asked to accept.
PN1231
Mr Baarini was making something of the fact that Qantas is out to save costs and that. Qantas hasn't done anything different. Qantas is happily continuing on applying the agreement in the way in which it has always applied it until sometime during 2014 when this issue was raised and Mr Reed s evidence explains why it was raised. It was raised in part as a bit of a protest or response to the fact that in relation to meal allowances Qantas affected a change in the meal allowances which had the effect of reducing meal allowances and it may not have been clear from the evidence of Mr Reed, and you could be forgiven for thinking that that was achieved against the vigorous opposition of at least the FAAA, that wasn't the case.
PN1232
The FAAA supported the position of the company in the proceedings before Commissioner Johns. But as Mr Reed says in his evidence, the members were not happy about that, so they started combing through the EBA to try and find, somewhat opportunistically we would submit, some provisions that they could try and get the company on. I think it s fair to say they think they ve hit the jackpot with the uniform allowances.
PN1233
As I said at the outset, the provisions are of long standing and that is relevant for a number of reasons and, in particular, in relation to the application of the Golden Cockerel decision, which I will come to. But perhaps if I could just hand up by way of a summary, Commissioner, this is just a schedule that s been prepared and I think it s an update really of the schedule that we handed up in the conciliation proceedings, but it just summarises the history of the EBAs and the awards, so it s just been extracted from the Commission s records, but it contains a useful summary, as best we can ascertain it, of the history of this provision from the earliest awards that we've been able to identify through the Commission s records in 1974 through to EBA 9.
PN1234
Just for ease of reference, Commissioner, the document is in three columns. The left‑hand column identifies the relevant enterprise agreement. The middle column is the underlying award and then the right‑hand column sets out the relevant cabin crew manual provisions. Perhaps if I can hand that up. You'll see from this, Commissioner, that the two outside columns are blank on the first page because initially it was only an award provision and you will see there that there are to awards referred to. There s the Airline Flight Stewards Award 1974 and I asked Mr Reed some questions about this. That was an award that covered flight stewards who were male flight attendants. There was also at the same time the Airline Flight Hostesses Award 1974, which covered female flight attendant.
PN1235
In the Stewards Award 1974, there was no provision. It was similar to the current EBA provisions, but you'll see in the Airline Flight Hostesses Award, that the provision in that award is more or less word for word the current provision in EBA 9. Then turning the page, you'll see that in 1986 those two awards were consolidated and our review of the Commission s files shows that what actually happened there was that the Flight Hostesses Award was renamed the Airline Flight Attendants Award and the Flight Stewards Award was terminated.
PN1236
So from 1986 the award coverage which covered all flight attendants derived from the Flight Hostesses Award and the uniform provision was unchanged. You will see in 1986 in the left‑hand column there s a reference to a Cabin Crew Qantas Agreement 1986 and I'll perhaps just hand up not the entire agreement of that, but just the front page and the relevant uniform provision of that.
PN1237
This agreement, Commissioner, is an unregistered agreement and it s one of documents located during Qantas trawl through its own archives. It doesn't appear on the copy that Qantas has to have been executed so we don t submit that it in any way necessarily came into legal force or effect, but it appears that there was, at least in 1986, some attempt between Qantas and what was the AICCA and the Flight Attendants Association at that time to enter into an agreement and the timing of it seems to coincide with the consolidation of the award.
PN1238
The Commission will see in the last page of that agreement, which is just an extract of clause 33, a uniform provision and the only thing we draw the Commission s attention to there is that clause B says, Uniforms shall be dry cleaned at the company s expense. This agreement may never have been signed. We don t say that other than it is a record of the fact that at some point in 1986 in discussions in relation to a uniform provision the term dry clean was used and, in our submission, and it will become apparent why we say this later, that is entirely consistent with the meaning that the company has always attached to the word launder as it appeared in the original award provisions and subsequent provisions. We don t think we can take it any further than that, but it is part of the history. There was then EBA ‑ ‑ ‑
PN1239
MR BAARINI: Sorry to object, Commissioner, I raise an objection in relation to the use and relevance of this particular document for the purposes of today s dispute.
PN1240
MS McKENZIE: I'm not submitting or tendering it as evidence.
PN1241
MR BAARINI: I mean, it s brought before the Commission in closing submissions and the Commission is now being invited to make inferences based on a document that by Ms McKenzie s own admission is unregistered and unsigned and yet the inference that the Commission is being invited to draw is that the parties back in 1986 for the first time, or whatever time, have sought to introduce this concept of dry cleaned at the company s expense . I just make that objection, for what it s worth, Commissioner.
PN1242
MS McKENZIE: Commissioner, we re not tendering it as evidence of the truth of that. We do think it is relevant to explain all of the circumstances in which the provision of the EBA is to be construed.
PN1243
THE COMMISSIONER: Of course, the obvious question is then why wasn't it with your material before now? I'll have to give the applicants an opportunity, if they wish to take it, to put anything on about this now, won t I?
PN1244
MS McKENZIE: Commissioner, we don t put it forward as evidence of the truth of this. It s simply part of the historical history and we felt in circumstances where we had identified the awards and the various agreements, we became aware of this document. We don't know whether it was signed and I'm prepared to accept for a moment that it wasn't signed and, as I think I was clear in my submission, has no - we re not suggesting that it s got any legal force or weight, but it seems to be at the lowest point some part of the history of how uniform allowance provisions were dealt with in industrial ‑ ‑ ‑
PN1245
THE COMMISSIONER: But wouldn't it have been appropriate to have put that in with your material as part of your evidence?
PN1246
MS McKENZIE: We weren't aware of it at that time, Commissioner. If we d been aware of it at that time, that s probably we certainly would have. We re not seeking to surprise anyone with it. It s really part of history which we felt once we d uncovered it, we should put it into the mix, but I'm quite happy for the Commission to give it as little weight as it thinks fair in the circumstances. I'm not trying to ambush anyone with it. It was part of the history which we felt for completeness we should at least refer to.
PN1247
Then the EBA reference starts with EBA 3 and on my instructions, EBA 1 and 2 were umbrella agreements that were negotiated by the ACTU on behalf of all unions for Qantas and they were whole of enterprise agreement which did not contain any provisions that were particular to any occupational group within Qantas. EBA 3 is therefore the first enterprise agreement that was specific to flight attendants and, in particular, international flight attendants. So EBA 3, which commenced on 17 December 1996, is the first specific EBA. That did not contain any substantive provisions. It just incorporated by reference the provisions of the relevant awards.
PN1248
Then as the schedule goes through, EBA 4, a different approach appears to have been taken and EBA 4 was a comprehensive incorporation in a stand-alone agreement of terms and conditions of employment for long haul cabin crew and contained a uniform clause, but the uniform clause in that EBA is in identical terms as the clause in part 1 of EBA 9 and then continuing EBA 5 ‑ ‑ ‑
PN1249
THE COMMISSIONER: I don't think that s quite the same. That's the same as it is in 23.3 and the second part of the with the added words by the company .
PN1250
MS McKENZIE: I apologise, Commissioner. Correct. That picks up the words that are then picked up in part 2.
PN1251
THE COMMISSIONER: Yes.
PN1252
MS McKENZIE: Yes, yes. I'll come to the significance or otherwise of those words later, but that s correct, Commissioner, that it includes by the company . That in fact seems to reflect the provisions of the award. Once the award was incorporated in 1986, the consolidation picks up that wording from the Flight Hostesses Award by the company at the company s expense . That seems to be constant throughout at least the relevant awards
PN1253
In EBA 5, the approach seems to have been taken to go back to an incorporation of earlier EBAs rather than a repeat of all of the terms and conditions. That appears to have been the approach taken in EBA 6 as well. It just incorporates by reference the provisions of the earlier EBAs and then, similarly, EBA 7 incorporates by reference the earlier EBAs. Then EBA 8, the approach is then taken of reverting to a stand-alone comprehensive enterprise agreement and the wording by the company does not appear in part 1 of EBA 8, but in part 2, the words, By Qantas/QCCA appear to be there, but in other respects the provisions are the same and, similarly, the award provisions are unchanged until such time as the modern award is made, which contains and in the modern award the requirement that the uniforms be laundered by the company is not there.
PN1254
Then on the right‑hand column we've sought to set out in a way chronologically the way in which the administration manuals have been updated, but are alongside the EBAs, but generally the approach has been taken there to we ve referred to the ones that we actually have copies of. In our submissions, we make the primary submission that given the dispute that has arisen between the parties, the only way in which the Commission can resolve or determine this dispute is to determine the proper construction and meaning of the relevant provisions which, as I said, are in similar but not quite identical terms.
PN1255
Notwithstanding the vigorous submissions of the applicants that the words are plain and clear and unambiguous, in our submission, there is obvious ambiguity and lack of clarity as to the meaning of these provisions, in part demonstrated by the dispute that we now have, but, in our submission, by the Commission applying the very well established principles of construction, which have been distilled and summarised in the Golden Cockerel, the Commission will be able to determine the meaning and, in our submission, should be satisfied that in the context of this agreement, the word to launder means to dry clean and it means to dry clean those parts of the uniform that are only able to be cleaned through dry cleaning.
PN1256
It does not, and cannot, mean to wash and iron in the context of this agreement. Mr Nolan submitted to you that the words can only ever mean what they mean and that the context of the industrial instrument can t change that. That is not, of course, the case and it s been long recognised by courts that when construing industrial instruments, the fact that it is an industrial agreement with a lot of industrial history in that is an important part of the factual context.
PN1257
There was a recent decision of his Honour Watson VP in June of last year, print number 550766, and I apologise I don't have a copy of it, but it was a case involving Qantas and the Pilots Association and it was an application by Qantas to vary a workplace agreement to remove an uncertainty or ambiguity and the uncertainty and ambiguity arose from the reference in the agreement to the term training allowance and the pilots asserted, effectively, that the agreement referred to a training allowance and because in another context a superannuation trust deed said that superannuation was payable on training allowances then a training allowance was a training allowance and it was clear something that superannuation had to be paid on, notwithstanding that the history had been for some 30 years that the particular allowance in question had never been the subject of superannuation.
PN1258
His Honour, after hearing all of the evidence of the history and how this provision came to be in the agreement, was satisfied that in the context of that agreement, and having regard to the surrounding circumstances, the training allowance was in fact not a training allowance, notwithstanding the obvious words and it meant something different and his Honour then removed the uncertainty or ambiguity.
PN1259
I refer to that really by way of an example that when one is dealing with industrial instruments, like agreements and awards, it is not stretching the bounds of reasonableness to sometimes find that the words don t mean what on their face one would otherwise think that they would mean and this is a very obvious example of this and that s why the principles of construction apply to disputes over the construction or interpretation of agreements.
PN1260
We say in relation to the application of the Golden Cockerel principles that if one applies the principles in turn, one will clearly come to the view that one needs to determine the meaning of this provision, having regard to the broader context. Principle 3, which, Commissioner, I think drew Mr Nolan s attention to, is the basis upon which we say this is possible because principle 2 says first of all:
PN1261
In construing an agreement, it s first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.
PN1262
Then, importantly, principle 3:
PN1263
Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
PN1264
So you don t get to the point you don t determine an ambiguity before you consider the circumstances. You can clearly have regard to the circumstances in determining whether or not there is an ambiguity and we say that is what needs to be done on this occasion. What surrounding circumstances means is clear from an earlier - paragraph 25 of the decision where the Commission is summarising the various leading authorities and sets out and I think it s an extract from another case which quotes from Codelfa and Codelfa is one of the leading authorities obviously on the relevant principles. In the extract that is quoted from Codelfa, the court says:
PN1265
The concept of surrounding circumstances is to be understood to be a reference to the objective framework of facts. It will include evidence of prior negotiations, so far as they tend to establish objective background facts known to both parties and the subject matter. It will also include facts so notorious that knowledge of them is to be presumed.
PN1266
In our submission, and we set this out here, if one has regard to the objective background of facts, one should take into account, first of all, that this provision appears not to have ever been the subject of negotiation directly by the parties. It seems fairly clear from the table that the provision has been picked up from an award going, at least back to 1974, and put into agreements. I think Mr Reed s evidence was that he doesn't recall ever turning his mind to this clause.
PN1267
I think his evidence also was to the extent that he s looked through the archives of the FAAA, he couldn't find any relevant references to the operation of the uniform provision and Mr Brown s evidence is also that he s gone through the Qantas archives or he s caused them to be reviewed and the only documents that seem to be relevant to uniforms have been included and they don t deal with any issue in relation to the negotiations of this provision.
PN1268
It is also part of the objective framework of the facts, importantly in our submission, that at the time at which not just EBA 9, but going right back to EBA 4, EBA 3 and the consolidation of the awards, at the time at which these instruments were being made, the core pieces of Qantas uniform, the jacket, the trousers, the skirt, were made of fabric which required them to be dry cleaned. They were not washable. They had to be dry cleaned.
PN1269
At the time at which the provision was then agreed, which referred to uniforms being laundered, the items, the core items, of uniform that were being worn at that time were not able to be washed. In our submission, that in itself requires the term launder to be considered in that context. The clothes were only dry cleanable. It is also part of the objective framework of facts that Qantas has always assumed responsibility for the cost of dry cleaning those uniform items which formed the core of the uniform and it had been a longstanding practice for many years that crew would be issued with a dry cleaning for that purpose.
PN1270
Mr Reed agreed that he recalled being given a dry cleaning card at least in 1988 when he began and Ms McKenna also agreed that when she commenced in 1992 that was her recollection. And, importantly, too, Commissioner, you may recall Mr Reed s evidence that when part 2 was negotiated and the allowances were a little bit different, Mr Reed said that there was no real need to replicate the ODTA or SDTA in part 2 because the FAAA had negotiated with Qantas that part 2 crew would be provided with dry cleaning cards from Lawrence, the same as part 1.
PN1271
So a clear practice and acceptance of the fact that the obligation to launder uniforms was an obligation to dry clean the uniforms and that is the only meaning of launder which makes sense in the context of that background of facts. So when one looks at the surrounding circumstances, and we say it s the history, the industrial regulation, the nature of the uniforms that were worn, as well as the way in which those award provisions had been applied as early, at least, as 1974, which is as far back as we can go, the Commission should come to the view that the provision is uncertain or it s at least ambiguous.
PN1272
That much seems to have been conceded in the written submissions filed by the applicants and we refer to this in our submissions, but in the FAAA s initial submissions filed in February, they say:
PN1273
The ordinary meaning of the term launder means to wash and iron, a process more commonly associated with items of clothing not laundered by Qantas under its policy, but has come to include all items of clothing required by the employer to be worn.
PN1274
So the FAAA is conceding at the outset that although the ordinary meaning is wash and item, that is the very thing that is not done, but instead dry cleaning is done. Whilst we note what Mr Nolan says about the possibility that dry cleaning can be washing because it s the application of a fluid, it does seem to do some injustice to the word dry in the term dry cleaning and it seems to us to be a stretch to form the view that washing includes dry cleaning, but in any event, we don t need to resolve that debate because, in our submission, when one comes to the view that there is some uncertainty or ambiguity in the term as it s used in EBA 9, one should resolve that ambiguity by determining that the word launder means dry clean and dry clean only in that particular context. Similarly, the TWU also refers to the ordinary meaning being to wash and iron, but then says:
PN1275
But it makes no reference to which items are laundered or how to launder, whether dry cleanable or not, ironing or not.
PN1276
So the TWU is submitting that although launder ordinarily means wash and iron, it could also include dry cleaning, but the fact of those submissions in themselves, we would say, demonstrate that there s at least some uncertainty or ambiguity as to what the clause means in the context in which it appears in part 1 and in part 2. So on the basis of the application of the Golden Cockerel principles, we would say that the Commission should have regard to the surrounding circumstances and come to the view that there is some ambiguity and then the Commission has to apply the subsequent principles to determine how to resolve that ambiguity.
PN1277
We set out in our submissions and I won t repeat them the factors that we say are relevant there. Whilst we say the primary ambiguity or uncertainty derives from the use of the term launder we also draw attention to the other uncertainty created by the absence of the other provisions which the Commission has referred to. There s nothing in the clause that goes to how that obligation is to be satisfied as to either frequency or the number of items or the ‑ ‑ ‑
PN1278
THE COMMISSIONER: There s no limitation.
PN1279
MS McKENZIE: There s no limitation and nor is there any limitation to be derived from the term uniform . It s not entirely clear in the context of clause 20 what is meant by uniform as it s used in the clause and we refer to the particular words where at some point in the EBA it says the uniform and at other parts it talks about items of uniform and Mr Baarini, I think, referred to the question that I asked of Ms McKenna, but when one looks at the opening paragraph of clause 17, it says:
PN1280
The employee must wear the uniform at all times whilst on duty and must keep the uniform in good order and condition and must replace the uniform.
PN1281
And it then goes on to talk about other matters. The uniform - you've heard evidence that at the moment, in any event, the approach that has been taken is to provide a range of uniform items and flight attendants now have a lot more choice as to which items they choose to wear. Indeed, some of the items of uniform clothing that the company provides are optional. The company doesn't require a crew to wear them. There s no requirement to wear a cardigan. If flight attendants choose to have a cardigan for personal comfort then Qantas provides it, but there s no requirement of Qantas for people to have a cardigan or to wear it. So does that mean that the cardigan must be laundered by the company or is it only those items of uniform that the company requires people to wear at all times?
PN1282
It s not entirely clear and over time practical application of these provisions has to be made, but if one like a lot of provisions in industrial instruments, the more one scrutinises them, the more unsatisfactory they are and that s because quite often they have either been the subject of detailed negotiations over many, many years or, as in the case of this one, they ve never been looked at and no one has ever really turned their mind to what they mean. This one perhaps suffers from the fact that nobody has really turned their mind to what these words mean for some 40 years.
PN1283
We say that that is not irrelevant consideration in determining how it should be construed today in the context of this particular dispute because the consequences of a construction are then accepted as being contended for by the applicants is that Qantas has been in breach of its obligations and that is a construction that, in our submission, the Commission should be very reluctant to come to and a far more appropriate and more consistent construction with the conduct of the parties and the application of this agreement in a practical sense over many years is that if one construes the term launder to mean dry clean then Qantas practice and behaviour and application of this agreement has been entirely consistent and appropriate throughout the history of industrial regulation it has always dry cleaned items of uniform that are dry clean only.
PN1284
It has specified through different iterations of the uniform what those items are and it has made arrangements to meet the direct cost of those items. It is the case, though, and Mr Reed and Ms McKenna both agreed with this, that items such as shirts have never been the subject of dry cleaning and have never been washed at the expense of the company and never suggested never suggested by anyone that shirts should be the responsibility of the company to wash. In that context, the 1999 issue that arose in relation to the serving jackets is relevant because in that dispute, which is referred to - and, I think, the correspondences attach it in a couple of places, but in Mr Reed s as well as, I think, Mr Brown.
PN1285
It appears that in 1999 the FAAA wrote to the company and raised an issue about the fact that the crew were being asked to wash the serving jackets and it s asserted in the correspondence and this is SR2 that it is the responsibility of the company to arrange for the hand washing of these jackets. There s no indication of what took place by way of discussions, but four days later the relevant manager responds and says:
PN1286
I ve considered your letter and have reached the conclusion that effective immediately the serving jacket will be included in the dry cleaning allocation.
PN1287
As Mr Reed conceded, that appears to have resolved the dispute. So it s not the case that the issue about whether or not the company should wash the serving jacket or any other item of clothing was really pressed. The acceptable resolution of the dispute was that the serving jacket would be included in the dry cleaning allocation. So it was to be dry cleaned and that was then apparently that appears to have resolved the issue until the current dispute arose some 15 years later.
PN1288
Commissioner, particularly in the interests of time, I won t repeat the submissions. I that that I have covered the other matters that we wish to raise. Just I think to conclude, when one looks at the overall context and purpose of the agreement and by applying the revolving principles, as they're called, in our submission, the construction of the agreement should be determined to require Qantas to dry clean those items of uniforms that are only able to be dry cleaned, the ones that say dry clean only .
PN1289
I think Mr Baarini sought to make something of the different language used in the various manuals, but it does, in our submission it is clear from the instructions that have been issued to crew through the web site in relation to the current Martin Grant uniform what the care requirements are and we say it s very clear that items that have dry clean only on the tag are submitted for dry cleaning and Qantas dry cleans those. Items that are not dry clean only are the responsibility of the cabin crew to wash.
PN1290
It may be, Commissioner, that if at some point in the future dealing with the hypothetical that you posed, if it was ever to be the case that the fabrics or the uniform design meant that things were entirely made of machine washable fabrics then presumably that would be the subject of some negotiation discussion between the parties as to the fact that clause 17 and clause 20 may have at that point spent its purpose and it was time for a new provision in relation to uniforms and that could be any range of things. It could be an allowance or it could be anything else, but it would be pretty clear at that point that this current provision, which has stood for at least 40 years, may no longer have been appropriate, but we re not there yet.
PN1291
It is still very readily able to be applied. The core uniform items are dry clean only, the jackets, the trousers, the skirts and Qantas spend some half a million dollars a year dry cleaning those items and to date has made no complaint of that. It s not Qantas that has raised this dispute because of a concern around the cost and frequency.
PN1292
As Mr O Connor says in his statement, it s his view at the moment, in any event, that the cost of the dry cleaning are not unreasonable and Qantas have no complaint as to how the provision was being applied. I think that s all I need to say, Commissioner.
PN1293
THE COMMISSIONER: Do either of the applicants want to make any submissions in response?
PN1294
MR NOLAN: I think we'll rest content with our earlier submissions, in particular what we've said about the significance of the Golden Cockerel case, we stand by what we've said.
PN1295
THE COMMISSIONER: Mr Baarini, anything?
PN1296
MR BAARINI: Just very quickly again, just to emphasise the historical lesson that Ms McKenzie has given us this afternoon dating back to 1974. Whilst it is one that provides some background to this dispute and how the provision might have come to exist over time, the point that we make is that the words are what they are and unless there is some uncertainty that s found through extrinsic material to support there being uncertainty or ambiguity or giving the words a meaning more than what is understood by the plain reading of those words, even by closing submissions of my friend Ms McKenzie, she said on face value or reading of the words, They are what they are, and I guess the point that we d make is that they are what they are and they should be adopted and read and applied as plainly and as ordinary as they arise.
PN1297
The reference to extrinsic material, unlike the Golden Cockerel case was about extrinsic material of negotiations between the two parties that led to the approval of an enterprise agreement. We don t have any extrinsic material that is directly relevant or connected to the dispute before you, notwithstanding that that provision may have been contained in awards or enterprise agreements dating back to 1974, Commissioner. Thank you.
PN1298
THE COMMISSIONER: Thank you. In view of the late material, if either of the applicants want to put on anything by way of some further submission in respect of that material, they ll have seven days to do that from today. It may be that when you look at it you're not troubled by it. Certainly, the unregistered 1986 agreement document is not forming part of the evidence in the matter, but if there s anything in the historical material which has been provided late that you want to take issue with, you'll have seven days to put on something about that. The decision in the matter is reserved and the proceedings are adjourned accordingly.
ADJOURNED INDEFINITELY [4.51 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
STEVEN REED, SWORN..................................................................................... PN27
EXAMINATION-IN-CHIEF BY MR NOLAN................................................... PN27
EXHIBIT #1 STATEMENT OF STEVEN REED DATED 17/04/2015........... PN48
EXHIBIT #2 ADDITIONAL STATEMENT OF STEVEN REED DATED 29/05/2015 PN62
EXHIBIT #FAAA1 SUBMISSIONS OF THE FAAA DATED 13/02/2015...... PN68
EXHIBIT #FAAA2 SUBMISSIONS DATED 17/04/2015................................... PN74
EXHIBIT #FAAA3 SUBMISSIONS IN REPLY BY THE FAAA DATED 29/05/2015 PN76
CROSS-EXAMINATION BY MS MCKENZIE................................................. PN88
EXHIBIT #3 QANTAS STYLE ON Q BOOKLET.......................................... PN222
THE WITNESS WITHDREW............................................................................ PN273
SUSAN MCKENNA, AFFIRMED..................................................................... PN278
EXAMINATION-IN-CHIEF BY MR BAARINI.............................................. PN278
EXHIBIT #4 WITNESS STATEMENT OF SUSAN MCKENNA DATED 15/04/2015 PN291
EXHIBIT #5 FURTHER WITNESS STATEMENT OF SUSAN MCKENNA DATED 25/05/2015................................................................................................................................. PN297
CROSS-EXAMINATION BY MS MCKENZIE............................................... PN340
RE-EXAMINATION BY MR BAARINI........................................................... PN495
THE WITNESS WITHDREW............................................................................ PN540
NICHOLAS CHRISTOPHER MATTHEW O'CONNOR, SWORN.............. PN546
EXAMINATION-IN-CHIEF BY MS MCKENZIE.......................................... PN546
EXHIBIT #6 STATEMENT OF NICHOLAS CHRISTOPHER MATTHEW O'CONNOR DATED 15/05/2015............................................................................................................... PN569
CROSS-EXAMINATION BY MR BAARINI................................................... PN574
THE WITNESS WITHDREW............................................................................ PN806
NICHOLAS CHRISTOPHER MATTHEW O'CONNOR, RECALLED ON FORMER OATH................................................................................................................................. PN806
CROSS-EXAMINATION BY MR BAARINI................................................... PN806
RE-EXAMINATION BY MS MCKENZIE....................................................... PN953
THE WITNESS WITHDREW............................................................................ PN985
SIMON GEOFFREY BROWN, AFFIRMED................................................... PN988
EXAMINATION-IN-CHIEF BY MS MCKENZIE.......................................... PN988
EXHIBIT #7 STATEMENT OF SIMON GEOFFREY BROWN DATED 15/05/2015 PN996
CROSS-EXAMINATION BY MR BAARINI................................................. PN1000
THE WITNESS WITHDREW.......................................................................... PN1043
EXHIBIT #QANTAS 1 SUBMISSIONS BY THE RESPONDENT DATED 15/05/2015 PN1049
EXHIBIT #TWU 1 OUTLINE OF TWU SUBMISSIONS DATED 017/04/2015 PN1054
EXHIBIT #TWU 2 TWU SUBMISSIONS IN REPLY DATED 28/05/2015 PN1055
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/FWCTrans/2015/382.html